§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(5)(vi)

If a SHPO, THPO, Tribe, Native Hawaiian organization, or local government fails to respond to an agreement, the Federal official could enter into the agreement with ACHP instead. This could be particularly consequential where the nonresponsive party possesses specialized state, Tribal, local, or cultural knowledge that ACHP staff may not have, and also raises capacity questions given the proposal’s reliance on ACHP to absorb additional project-specific responsibilities.

NCSHPO Recommendation: ✗ Rejected/not utilized NCSHPO recommended clear Federal agency responsibility and the use of a mediator or facilitator for complicated undertakings, rather than substituting another Federal entity for a nonresponsive consulting party.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(2)(A)–(D) and (c)(3)(A)–(B); and § 2301(c)(4), adding § 306108(c)(5)(A)–(C)

Within 30 days of receiving a request for review, the Federal official must determine whether the activity is an undertaking. If it is, thereafter, the agency would establish the APE and identify historic properties.

If the Federal agency determines there will be adverse effects, it must complete and distribute a report within 60 days documenting the APE, historic properties, adverse effects, and potential avoidance, minimization, or mitigation measures.

The Federal agency would generally have 90 days after submission of the report to make a determination or reach agreement, followed by another 60-day consultation period if there is no agreement. The process would then move to ACHP for formal advisory comments, followed by a final agency determination.

NCSHPO Recommendation: ◐ Partly utilized The proposal adopts the recommendation for clearer timelines and defined points for moving the process forward, but rejects the recommendation’s emphasis on flexibility for project complexity and reliance on process improvements rather than rigid statutory deadlines.

§ 2301(b)(1), amending 54 U.S.C. § 302302; § 2301(b)(2), creating 54 U.S.C. § 302707; and § 2301(c)(4), adding 54 U.S.C. § 306108(c)(5)(B)(ii)

The proposal would make SHPO and THPO program consistency dependent on regularly meeting statutory consultation timelines and performance metrics. At the same time, many of the deadlines depend on Federal agency actions, including preparation of reports and determinations.

The proposal creates detailed performance expectations for SHPOs and THPOs, fixed consultation deadlines, mandatory program evaluations, fiscal audits, potential funding suspensions, and Federal assumption of State and Tribal functions.

At the same time, the bill does not establish a comparable requirement that Federal agencies conducting Section 106 reviews maintain appropriately qualified historic preservation staff.

This matters because the Federal agency controls many of the steps that determine whether the statutory clock can actually move forward.

NCSHPO Recommendation: ✗ Rejected/not utilized NCSHPO recommended that Federal agencies maintain sufficient qualified staff and capacity, while also supporting sustained, predictable Federal funding for SHPO and THPO capacity. The proposal instead creates detailed performance obligations for SHPOs and THPOs without a comparable Federal staffing requirement.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(5)(B)(ii)–(iii)

If the consultation process is not completed by the statutory deadline, each SHPO and THPO, as well as certain Federal Senior Executive Service supervisors with responsibility for the consultation, would be required to spend not less than 50% of the workweek remedying the failure. An unworkable, and unenforceable requirement.

The proposal also gives project applicants a cause of action to seek judicial enforcement of the Federal agency’s deadline.

§ 2301(b)(1)(A)–(D), amending 54 U.S.C. § 302302(a)–(d)

The Secretary would evaluate State programs at least every two years, rather than the current four-year interval.

A State program would not be considered consistent if the SHPO does not regularly comply with consultation timelines, complete consultation expeditiously, or meet required statutory metrics.

If a SHPO program remains inconsistent or fails to make acceptable progress within two years, the Secretary would assume all or part of the SHPO’s functions until the program becomes consistent.

Program disapproval would require suspension, in whole or in part, of contracts, cooperative agreements, and HPF grants to the affected State and SHPO.

The Secretary would also be required to conduct fiscal audits of SHPO programs at least every four years.

NCSHPO Recommendation: ✗ Rejected/not utilized NCSHPO recommended sustained, predictable Federal investment in SHPO capacity as a means of improving timeliness and predictability. The proposal instead creates additional Federal performance and funding consequences for SHPOs.

§ 2301(b)(2), creating 54 U.S.C. § 302707

Approved Tribal programs would be evaluated at least every two years to determine consistency with the NHPA amendments. A THPO program would not be considered consistent if the THPO does not regularly meet consultation timelines, complete consultation expeditiously, or meet required metrics. If a THPO program remains inconsistent or fails to make acceptable progress within two years, the Secretary would assume all or part of the THPO’s functions until the program demonstrates consistency. This is especially problematic, because THPOs were created to assume the responsibilities of SHPOs, meaning, should a THPO be found out of compliance, it is the SHPO, NOT the federal agency whom the responsibility should revert.

Disapproval of a Tribal program or major aspect of a Tribal program would trigger suspension of applicable contracts, cooperative agreements, and HPF grants. Funding consequences can also reduce the resources available to correct the underlying problem.

NCSHPO Recommendation: ✗ Rejected/not utilized NCSHPO recommended sustained, predictable Federal investment in THPO capacity. The proposal instead adds Federal performance requirements and potential funding consequences for THPO programs.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(8)

The Secretary would work with THPOs, Tribal leaders, and nonprofit organizations to establish standardized qualification requirements reflecting traditional knowledge, expertise, and access to traditional cultural leaders.

While this recognizes the importance of traditional knowledge, it also gives the Federal government a new statutory role in defining qualifications for Tribal preservation officials.

§ 2301(a)(1), amending § 302706(a)(1)

The proposal would define a property of traditional religious or cultural importance as an identifiable geographic location or feature where an event of continuing religious or cultural significance to a living community occurred, including districts, sites, buildings, structures, objects, artifacts, and material remains.

Although this could provide greater clarity, the requirement that the property be an “identifiable geographic location or feature” raises practical questions for resources whose significance is expressed through interconnected landscapes rather than a discrete point.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(4) and (c)(5)

For undertakings requiring a NEPA environmental document, Section 106 consultation would begin no later than NEPA review and generally be completed by the applicable NEPA environmental document.

A NEPA draft environmental document could also serve as the Section 106 report if it contains the required information and the consulting parties are notified.

Where multiple Federal agencies have jurisdiction, they would designate a lead agency. The NEPA lead would presumptively serve as the Section 106 lead. If agencies fail to designate a lead within 15 days, an applicant could request designation by the Secretary, while the Secretary would designate a lead for Federal-government undertakings.

While this could reduce duplicative documentation and improve clarity about who is responsible for moving a multi-agency review forward, it also makes the preservation process more dependent on the NEPA schedule and the staffing, expertise, and priorities of a single lead Federal agency.

NCSHPO Recommendation: ◐ Partly utilized The proposal encompasses two NCSHPO recommendations: coordinate Section 106 initiation with NEPA where applicable, while recognizing that both processes must be satisfied separately; and designate a lead Federal agency for undertakings involving multiple agencies. However, NCSHPO emphasizes the need for flexibility, communication, and qualified agency staff.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(7)(A)–(B)

Federal agencies would be required to develop and implement PAs for categories of undertakings that normally have no adverse effects, are similar and repetitive, or involve routine management activities.

SHPOs and THPOs could develop PAs for specified categories. Where a Federal agency and SHPO/THPO each have a PA covering the same category, the SHPO/THPO PA would control.

While programmatic approaches can improve predictability when developed collaboratively, the concern is whether mandatory use of PAs could reduce project-specific consultation where the circumstances of an individual undertaking warrant it.

This could strengthen the role of State and Tribal programs, but it also makes the negotiation, scope, and enforceability of PAs much more consequential.

NCSHPO Recommendation: ◐ Partly utilized The proposal adopts NCSHPO’s recommendation to expand programmatic approaches for recurring and repetitive activities and to establish predictable procedures. However, NCSHPO recommended collaborative use of existing programmatic tools while preserving flexibility for project-specific circumstances; the proposal instead makes PAs mandatory for specified categories.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(4)(D); and § 2301(c)(10)

The failure of a non-lead Federal agency to sign a programmatic agreement would not prevent the project from proceeding under the PA.

A party that is not a signatory to a PA entered into under the new provision could not bring a civil action challenging its implementation.

This could weaken the practical value of concurrence among Federal agencies with jurisdiction over a project and raises questions about how durable an agreement is when an agency with substantive authority is not a signatory. At the same time, participation in the PA process becomes more consequential while later judicial review by parties that did not sign is limited.

NCSHPO Recommendation: ✗ Rejected/not utilized NCSHPO recommended negotiated programmatic approaches involving Federal agencies, SHPOs, THPOs, and other stakeholders, with consultation and historic-property protections preserved. The proposal makes participation in PAs more consequential while reducing the ability of some parties to challenge their implementation.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(2)(C)

Existing Programmatic Agreements are negotiated agreements among identified parties that establish agreed procedures for particular categories of undertakings. Under the proposal, however, where an undertaking is governed by an existing program alternative, the Federal official ‘may’ follow that program alternative. This opens the door for agencies picking and choosing which process they want to follow – leading to inconsistency and conflicts with negotiated existing processes and procedures. It also places this decision in the hands of the Agency at the expense of any other signatory.  

NCSHPO Recommendation: ◐ Partly utilized The proposal promotes programmatic approaches but departs from the recommendation’s emphasis on negotiated, predictable procedures developed through consultation and designed to provide durable, consistent treatment of recurring activities.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(9)

Courts would be required to afford substantial deference to Federal agencies and could not substitute their judgment for the agency’s.

The normal remedy for a Section 106 violation would be remand to the Federal agency without vacatur or injunction, with correction generally required within no more than 180 days.

Section 106 claims generally would have to be filed within 150 days after the applicable final agency action is made public and the SHPO or THPO is notified.

Plaintiffs generally would have to demonstrate direct or imminent direct harm and, where there was a public comment process, submit a sufficiently detailed substantive comment.

SHPOs, THPOs, Tribes, Native Hawaiian organizations, and local governments that provide detailed written notice during consultation would be exempt from those particular requirements.

The authorization and potentially the underlying project could continue while the agency corrects the deficiency, while early, documented participation in consultation becomes particularly important.

NCSHPO recommendation: ✗ Rejected/not utilized NCSHPO called for better data to distinguish actual Section 106 problems from delays caused by agency capacity, project development, incomplete information, and other factors before making changes of this magnitude, and did not recommend limiting judicial review or remedies.

§ 2301(c)(4), adding 54 U.S.C. § 306108(c)(9)(E)(i)

The Federal courts of appeals would have original and exclusive jurisdiction over specified Section 106 claims.

§ 2301(c)(4), adding 54 U.S.C. § 306108(d)

If a property is identified, nominated, or listed in the National Register after the Federal agency initiates review, the agency would not be required to delay, reopen, supplement, or modify the review or consultation process. This creates a statutory cutoff that could matter where new information about significance emerges during an active Federal review.

NCSHPO recommendation: ✗ Rejected/not utilized NCSHPO recommended proactive surveys and National Context Studies to improve the information base before individual undertakings arise and emphasized analytical review of project areas rather than assumptions about SHPO requirements.

§ 1204(b)(5)(A)(iv)

For specified nationwide permits, the bill would provide that no consultation under 54 U.S.C. § 306108 is required when the Corps reissues the general permit, subject to conditions concerning preconstruction requirements.

This is not simply a NEPA change. For SHPOs, THPOs, Tribes, and other preservation stakeholders, this means that a nationwide permitting mechanism could be renewed without the Section 106 consultation that would otherwise apply to the Federal permitting action.

§ 2102(a), adding Federal Power Act § 216A; § 2102(b), adding Natural Gas Act § 7(i)

Certain activities to maintain or increase electric-grid capacity within a covered area would be categorically excluded from NEPA and expressly would not be considered an “undertaking” under 54 U.S.C. § 306108.

The covered activities include reconductoring, voltage increases, circuit additions or adjustments, advanced transmission technologies, certain right-of-way widening, energy storage additions, and parallel circuits.

Similarly, covered pipeline activities within an existing right-of-way or previously authorized and environmentally reviewed footprint would not be considered a major Federal action under NEPA and would not be considered an undertaking under 54 U.S.C. § 306108.

The covered activities include repair, maintenance, replacement, upgrading, rebuilding, modification, optimization, minor relocation, looping, compression, capacity enhancement, and additions to existing pipeline facilities.

NCSHPO recommendation: ✗ Rejected/not utilized NCSHPO recommended addressing large-scale and linear projects through proportionate avoidance, minimization, mitigation, and programmatic approaches, while preserving opportunities for SHPOs, THPOs, Tribes, and other consulting parties to provide relevant information. The proposal instead removes specified categories of linear infrastructure from Section 106 entirely.

§ 2225

The proposal would prohibit the Secretary from requiring a Federal drilling permit for specified geothermal exploration and production activities on non-Federal surface estate where the United States owns less than 50 percent of the subsurface geothermal estate and the operator submits a State permit.

This provision does not itself amend NHPA. But it interacts directly with the proposed § 2301(c) definition of an undertaking, which requires a Federal permit, license, or approval. As a result, the two provisions together could result in indirect impacts of certain geothermal activities no longer requiring a Federal permit would trigger Section 106.

§ 1401

The proposal would broadly define a Federal authorization or permit to include permits, records of decision, rights-of-way, findings of no significant impact, verifications, concurrences, and even Federal determinations that additional authorizations or permits are not necessary.

For projects with non-Federal sponsors, Federal agencies generally could not later revoke, suspend, amend, or alter an authorization already in effect, or interfere with construction or full-capacity operation, except under specified circumstances.

The provision does not expressly target Section 106. Its preservation significance is that a Federal agency’s determination about the need for preservation review or the terms of a Federal authorization could become substantially harder to revisit later. That could matter if historic-property information emerges after an authorization has been issued but does not fall within one of the specified exceptions.

NCSHPO recommendation: ✗ Rejected/not directly addressed The proposal reflects NCSHPO’s interest in clear decision points and timely action, but the recommendations emphasize using better information, consultation, guidance, and professional judgment to resolve uncertainty before decisions are locked in, rather than limiting the ability to revisit Federal authorizations.

§ 1401; related judicial-review provisions

The bill provides that a remanded authorization generally remains in effect while the agency corrects deficiencies, and the activity covered by the authorization may continue during the remand period. For Section 106, this reinforces the proposal’s separate rule that remand, rather than vacatur or injunction, would ordinarily be the remedy.

The practical consequence is that correcting a deficient review may occur after project implementation has already begun, potentially limiting the practical value of additional consultation.

NCSHPO recommendation: ✗ Rejected/not directly addressed The proposal reflects NCSHPO’s interest in avoiding prolonged disputes and moving toward practical mitigation, particularly for large-scale and linear projects. However, NCSHPO’s recommendation does not support continuing projects during correction as a general judicial remedy; it focuses instead on resolving uncertainty through the Section 106 process.

§ 2226

For geothermal projects, the Secretary would generally continue processing and deciding applications despite a pending civil action affecting a geothermal authorization, unless a Federal court vacates the authorization or provides injunctive relief. The provision expressly identifies compliance with the National Historic Preservation Act as one of the applicable Federal-law requirements.

This creates a sector-specific rule that could limit the practical effect of pending preservation litigation, but is narrower than the general judicial-review provisions.

§ 2302(a)-(b)

The proposal would reauthorize and increase the HPF annual deposit amount from $150 million to $200 million annually for FY2027 through FY2036. Amounts deposited beginning in FY2027 would be available beginning in FY2028 “without further appropriation or a fiscal-year limitation.”

As currently drafted, the funding is not mandatory, with the intent of the drafters being somewhat unclear as to whether the funds would go through the normal Congressional appropriations process.

NCSHPO recommendation: ◐ Partly utilized The proposal reflects NCSHPO’s recommendation for sustained Federal investment in SHPO and THPO capacity to strengthen timeliness of federal review. Notably, however, Congress already has the power to appropriate any amount to the HPF annually, including beyond an amount of $200 million.

§ 2302(c)

The Secretary of the Interior would establish a competitive grant program under the HPF for THPOs to develop online databases containing:

• records relating to the Tribe’s assumption of SHPO functions;
• determinations, findings, agreements, and supporting documentation; and
• comprehensive lists of properties of traditional religious or cultural importance.

Recipients of the new THPO database grants would not be required to disclose information about the location, character, or ownership of historic properties or properties of traditional cultural or religious importance where disclosure could cause significant harm or risk or impede practitioners’ use of the property.

The proposal authorizes $20 million annually for FY2027 through FY2030 (subject to Congressional appropriation). This would be a meaningful new Federal investment in Tribal preservation information infrastructure; notably, however, the proposal does not establish a comparable dedicated database modernization program for SHPOs, despite the demonstrated need.

NCSHPO recommendation: ◐ Partly utilized NCSHPO expressly recommended Federal investment in modern digital records, GIS, and related technology for both SHPOs and THPOs, and identified technology investment as an important component of broader capacity-building. The proposal adopts the technology-investment concept for THPOs, but does not provide the comparable dedicated SHPO technology investment contemplated by the recommendation. the recommendation.

§ 2301(b)(1)–(2); § 2301(c)(4), adding 54 U.S.C. § 306108(c)(5)

The proposal creates detailed performance expectations for SHPOs and THPOs, fixed consultation deadlines, mandatory program evaluations, fiscal audits, potential funding suspensions, and Federal assumption of State and Tribal functions.

At the same time, the bill does not establish a comparable requirement that Federal agencies conducting Section 106 reviews maintain appropriately qualified historic preservation staff.

This matters because the Federal agency controls many of the steps that determine whether the statutory clock can actually move forward.

The broad recognition of Federal agency understaffing, reduced ACHP capacity, and the proposed consequences for SHPOs and THPOs therefore identifies a central implementation issue: the bill creates a much harder statutory clock without ensuring that every participant in the system has the capacity to meet it.

The proposal places substantial new accountability on SHPOs and THPOs while leaving significant Federal agency capacity questions unresolved.

NCSHPO recommendation: ✗ Rejected/not utilized NCSHPO expressly recommended that Federal agencies maintain sufficient staff with appropriate professional qualifications and training and identified insufficient agency capacity as a demonstrated source of delay. The proposal adds significant accountability for SHPOs and THPOs without adopting a comparable Federal agency staffing requirement.