Senate Negotiators Reach Agreement on Permitting Reform Text

On Sept. 30, 2026, Senate negotiators announced agreement on the text of the “Bipartisan American Affordability and Jobs Act of 2026,” a long-awaited bill to reform and expedite federal environmental and energy permitting. The 417-page bill is the product of intensive negotiations among the chairs and ranking members of the Senate Energy and Natural Resources Committee and the Environment and Public Works Committee that began early in the 119th Congress.

The bill would make the most substantial amendments to NEPA since its enactment in 1969, and would reform permitting and review requirements under the Clean Water Act, the Endangered Species Act (ESA), and numerous energy and mining statutes. The bill narrows federal jurisdiction, strengthens state authority, imposes agency review deadlines, vests original jurisdiction over NEPA and National Historic Preservation Act (NHPA) decisions in the federal courts of appeals, creates 150-day limits on judicial review of agency NEPA, NHPA and permitting decisions, and adopts limits on standing and remedies for litigants, all in an effort to shorten permitting timelines and reduce delays resulting from court challenges and injunctions.

If enacted, the permitting reform would represent a landmark update to the major environmental, energy, and mining laws governing development in the United States. However, the path to enactment remains uncertain. In a press conference on Sept. 30, Sen. Sheldon Whitehouse noted that the bill sponsors plan a manager’s amendment, and expect further input and amendments from fellow senators, who are seeing the text of the bill just now. He also noted that the Trump administration’s renewable energy policies had complicated the negotiations, that this issue is not resolved, and that discussions with the administration are ongoing. The outcome of these discussions (among other factors) may determine whether the bill has enough Democratic support to reach the 60-vote threshold necessary to eliminate the threat of a filibuster so the Senate can proceed to consideration of the legislation.

The bill also would have to be reconciled with House permitting reform efforts, but sponsors noted at their Sept. 30 press conference that the bill already contains provisions from the House bills, and that House Committee chairs have been consulted as the Senate negotiations progressed. The House and Senate are now in recess until after the election, but the Senate will conduct a procedural vote on the permitting bill immediately when it returns on Nov. 9.

Major Provisions

NEPA (Division A, Title I)

• Confirms NEPA as an informational procedure that does not mandate a particular outcome, and narrows the Scope of Projects that Require NEPA Analyses; the following are not major federal actions (not a complete list):

– Non-federal projects where the government cannot control the outcome;

– Repair and maintenance of existing pipelines and other linear infrastructure, and activities within existing rights of way that do not involve major modifications;

– Federal loans and grants to private parties unless the federal government exercises substantial control over the use of the money;

– FERC’s backstop permitting authority for electric transmission projects in a National Interest Electric Transmission Corridor;

– Corps of Engineers water resource development projects costing less than $50 million; and

– Activities located entirely outside the territory of the United States.

• Adds Agency Coordination and Deadlines

– Deadlines to determine “lead agency” and “cooperating agencies;” project sponsor may ask the Council on Environmental Quality (CEQ) chair to resolve disagreements; CEQ decisions not subject to judicial review.

– One-year deadline for environmental assessments (EAs); two-year deadline for environmental impact statements (EISs).

– Allows reliance on relevant state and tribal environmental reviews.

– 90–120-day deadlines for authorizing agencies to act after issuance of EAs and EISs.

– Designation of key agency officials empowered to supervise and expedite NEPA work within the agency; consequences for agencies that miss publication deadlines, including travel restrictions and agency work allocation requirements (secretary of defense is exempt), and injunctive relief for project sponsors.

• Modifies CEQ Roles

– Development of data standards, including a standard taxonomy, to standardize concepts, formats, and protocols included in environmental reviews and authorizations and facilitate review, automation, and data exchange across agencies and projects.

– Master list of all categorical exclusions across the federal government so that agencies may adopt categorical exclusions promulgated by other agencies.

– Development of prototype tools (eNEPA) for environmental reviews and authorizations that implement task management and milestones, facilitate vendor-neutral operability, and allow data exchange among agencies and the development of shared services among agencies.

– Development of a publicly accessible application (eNEPA) portal to allow transparent application submission and tracking, and tracking of agency performance, environmental review, authorization, and litigation statistics. Fast41 process is preserved.

• Limits Federal Court Jurisdiction and Relief

– Original jurisdiction in the court of appeals for the circuit in which the project is located.

– Court challenges are limited to 150 days after project authorization is issued.

– Challenges limited to issues raised by the litigant in detailed comments sufficient to put the agency on notice.

– Challenger must allege “an actual or imminent injury in fact amounting to a direct harm.”

– Judicial review under the project authorizing authority; no separate NEPA judicial review.

– Remand sole remedy for noncompliance; no vacatur; courts to issue specific instructions to correct defects and supervise compliance.

– Preliminary injunctions available only in limited circumstances, and limited to time necessary to correct defects in NEPA documents.

– Courts to afford “substantial deference” to agency preparing NEPA documents.

The NEPA amendments in the bill would not empower CEQ to promulgate binding regulations. That authority had been long taken for granted until the D.C. Circuit Court of Appeals held in 2024 that NEPA did not contain rulemaking authority and that such authority could not be established via an executive order.[1] Instead, the bill would direct CEQ to provide guidance and technical assistance to federal agencies, similar to existing CEQ practice.

The legislation also would not require public comment on draft EISs, a requirement that had been in place for decades under the CEQ regulations (but not explicitly required in NEPA, which does not refer to “draft” documents). Instead, the bill would retain the practice of providing opportunity for public comment on the notice of intent to prepare an EIS (scoping), and would limit the length of the comment period to no longer than 75 days. A new addition to NEPA would require project applicants to submit a “record of stakeholder engagement,” not to exceed 20 pages, which would document the proponent’s efforts to engage affected communities, local governments, tribes, and other stakeholders.

Clean Water Act (Division A, Title II)

• Water Quality Criteria: Requires a notice-and-comment rulemaking to develop water quality criteria.
• CWA Section 401 Certifications: Imposes new limits on CWA Section 401 water quality certifications:

– Once a “certifying authority” (states, tribes, interstate bodies, or the administrator) issues a certification, the federal permitting or licensing agency must consider water quality requirements satisfied for purposes of the federal license or permit.

– Certification conditions are limited to achievement of water quality requirements.

– Federal agencies may not exclude conditions from permits and licenses if such conditions are necessary to achieve water quality requirements.

– Certifying authorities must provide public notice of certification applications.

– Certifying authorities may promulgate rules specifying what materials are required as part of the application for certification; if they do not, they are barred from rejecting an application as incomplete if it contains the items specified in the statute.

– Injunctive relief is available to the applicant if the certifying authority fails to comply with statutory requirements relating to completeness and review of certification applications.

– Certifying authorities must complete certification within a time frame identified by the relevant federal permitting agency, not to exceed one year (nine months in the case of pipelines and transmission lines).

– Pipelines and interstate transmission lines must obtain water quality certification for direct point source discharges only, not for sedimentation and other effects along the length of the pipeline or transmission line.

– Certifying authorities may waive water quality certification; the waiver is not subject to judicial review.

– In judicial review of a certification denial, the burden of proof is on the state or tribe to show by clear and convincing evidence that no reasonable conditions could have made it possible to achieve water quality requirements.

• NPDES Permits: NPDES permits would have 10-year terms, instead of the current five years.
• Section 404 Permits:

– Section 404 nationwide permits would have 10-year terms instead of the current five years.

– Consideration of effects under nationwide permits is limited to compliance with water quality requirements, and discharge of dredged or fill material into less than two acres of navigable waters constitutes a “minimal environmental effect.”

– Reissuing nationwide permits will not require Section 7 ESA consultation or Section 6 NHPA consultation. A programmatic EA for the general permit would comply with NEPA.

– Limits EPA’s Section 404(c) veto authority; must be exercised within the Corps’ permit application review period.

– Judicial review of permits and Corps approval of state programs must be initiated within 150 days.

– Challengers must have submitted comments (if a comment period of at least 30 days was offered) that were sufficiently detailed to put the permitting agency on notice.

– Courts limited to remand for further action as determined by the court and to be completed within 180 days; no vacatur or injunction allowed except upon a finding of imminent and substantial endangerment.

The Endangered Species Act (Division A, Title III)

• Section 7 Consultation: Time period for consultations shortened from 90 days to 60 days; extended time period shortened from 150 days to 100 days. Consultation lasting more than 145 days without consent or explanation entitles a permit or license applicant to ask a court of competent jurisdiction to compel agency action.
• Assumption of Consultation Responsibilities by a State: Interior may assign consultation responsibilities to states that demonstrate legal, financial, and personnel capability; assignments may not occur until implementing regulations are promulgated. States may seek judicial review of the secretary’s failure to act on its application to assume consultation responsibilities. District courts have jurisdiction of actions against a state for failure to carry out ESA consultation responsibilities.
• Judicial Review: Judicial review of ESA biological opinions must be initiated within 150 days from the date the opinion was published.



National Fish and Wildlife Foundation Coastal State Fund (Division A, Title III)

• Authorizes $50 million (subject to appropriations) for a fund to be allocated to coastal states by the National Fish and Wildlife Foundation.
• Fund supports state programs and activities to better understand and use coastal resources and ecosystems.
• 70% allocated equally among coastal states, 15% allocated based on amount of tidal shoreline; 15% allocated based on population density.



Project Certainty (Division A, Title IV)

• Prohibits federal agencies from taking actions to revoke, rescind, terminate, amend, or alter a federal authorization or permit in effect on or after Sept. 16, 2026, unless required by a court of competent jurisdiction, or unless the permittee/licensee has materially breached the terms of the permit or obtained the permit fraudulently, or unless the action is necessary to prevent “specific, urgent, substantial, and proximate harm to life, property, national security, or defense.”
• Project permittee or proponent may seek judicial review of any such action in federal district court; the Court of Federal Claims does not have jurisdiction over these cases. The federal agency must show by clear and convincing evidence that its action was justified. If the government fails to meet its burden, successful litigants may obtain attorneys’ fees and costs associated with the delay caused by the agency action, as well as 25% - 50% of all costs incurred because of the agency’s action. The court determines the amount of recovery, taking into consideration the degree to which the federal government acted in bad faith, the pattern of similar federal interference in other projects, and the actual economic harm to the permittee or project proponent.



Project Parity (Division A, Title IV)

• Requires federal agencies to treat all projects fairly and not to delay or discriminate against specific types of projects. Specific projects include renewable energy, fossil fuel energy, hardrock mining, battery storage, carbon sequestration, and many other types of projects listed in the bill.
• Requires federal agencies to act on permit applications for specific projects that do not require NEPA compliance within one year after the permit application is determined to be complete. Applicants may seek judicial review for failure to meet this deadline; courts are directed to provide expedited review and issue a decision within 120 days, absent extraordinary circumstances. Courts may provide injunctive relief and retain jurisdiction to supervise agency compliance. Injunctive relief must include an order requiring the agency to make a permitting decision within 60 days.
• Permit applicants may seek judicial review alleging that a permit was improperly denied or unreasonably delayed due to a pattern of disparate treatment by the federal government for the specific type of project.
• Empirical evidence of a pattern of improper denials or delays and evidence of statements made or policies adopted by executive branch officials are prima facie evidence of disparate treatment.
• A party prevailing against the federal government may receive attorneys’ fees, economic damages, and damages of 50% to 100% of “the total reasonably expected cost of construction of the project,” as determined by the court.



Electric Transmission (Division B, Title I)

• Siting and Federal Coordination: The bill would revise the Federal Power Act’s federal permitting pathway and criteria for interstate transmission facilities.

– FERC would have to consider whether a proposed facility is consistent with the public interest, protects or benefits consumers, improves reliability and, where applicable, makes reasonable and economical use of existing structures and rights-of-way.

– The bill preserves state siting authority generally, while providing for federal permits in specified circumstances.

- For facilities of at least 345 kilovolts, federal and state siting proceedings may proceed simultaneously, subject to the bill’s limits on when FERC may issue a permit.

- FERC would serve as lead agency for covered transmission facilities, and specified federal and state authorization decisions would be reviewable in the courts that review FERC orders.

– Interstate transmission lines must obtain water quality certification for direct point source discharges only, not for sedimentation and other effects along the length of the transmission line.

• Planning, Cost Allocation, and Local Oversight: Increased coordination and process streamlining.

– The Department of Energy would study transmission constraints and congestion at least every three years and may identify affected geographic areas.

– FERC would establish requirements for regional and joint interregional planning, including common assumptions and models, consideration of upgrades to existing rights-of-way, and a common set of transmission benefits.

– Planning processes generally would be submitted to FERC within two years and updated at least every four years.

– Projects selected through a qualifying regional or interregional plan would be treated as satisfying certain FERC permit criteria.

– The bill would direct transmission cost allocation toward customers that benefit from a project, with costs apportioned in a manner roughly commensurate with those benefits.

- Customers receiving no benefit, or only trivial benefits relative to the costs, generally would not be assigned those costs involuntarily.

– The bill also would prohibit a federal right of first refusal for facilities selected in a regional or interregional plan for cost allocation.

– States may refer concerns about a utility’s local transmission-planning practices to FERC, which may order changes to those practices and impose other remedies, including reducing the utility’s return on equity or imposing a fine in specified circumstances.

• Grid Upgrades and Emerging Technologies: Work to maintain or increase grid capacity within an existing electric transmission or distribution right-of-way would be categorically excluded from NEPA and would not be treated as a historic-preservation undertaking.

– Covered work would include reconductoring, certain voltage increases and circuit additions, installation of advanced transmission technologies, limited right-of-way widening needed for the work, and certain energy-storage additions.

– The bill also would require FERC to promote use of advanced transmission technologies, including best-available conductors, and to require deployment when the Commission’s benefit-cost test is met.

– FERC would be directed to revise generator-interconnection procedures to encourage use of computing technologies, including artificial intelligence and automation, in processing requests.

– A separate, consolidated planning process would coordinate transmission planning with anticipated generation and load over a 20-year period and provide for planned interconnection locations, fixed zonal costs, and a streamlined generator-cluster study process.

– The bill also would require transmission providers to maintain and share grid data needed for interconnection and other studies, generally within 15 days of a request, subject to confidentiality and security requirements.

Pipelines (Division B, Title I)

• NEPA and Existing-Corridor Work: The bill would exclude specified work on existing interstate natural gas pipelines from NEPA review, provided the work remains within an existing right-of-way or previously reviewed project footprint, together with any minimum adjacent area needed for the work.

– Covered activities would include repair, maintenance, replacement, upgrades, optimization, looping, compression, and capacity-enhancement work.

– The same activities would not be treated as “undertakings” under the NHPA.

– These exclusions would not displace requirements under the Clean Water Act, the Clean Air Act, or other federal laws the bill does not expressly address.

– Pipelines must obtain water quality certification for direct point source discharges only, not for sedimentation and other effects along the length of the transmission line.

– For natural gas pipeline projects requiring a certificate under Section 7 of the Natural Gas Act, the bill would focus certification on whether any direct point-source discharge complies with water-quality requirements and set a maximum review period of nine months.

Ratepayer Protection (Division B, Title I)

• Data Centers and Distributed Resources: The bill would direct FERC to revise transmission-pricing policy for service on behalf of computational loads, requiring charges to reflect embedded and incremental transmission costs and providing for lower charges for non-firm service.

– For covered data center and high-density computing loads of at least 20 megawatts, the bill would bar utilities from shifting incremental costs to other customers and require financial assurances for necessary generation, transmission, or distribution upgrades.

– States may use measures such as open seasons, separate rates, and service conditions to protect other ratepayers.

– The bill also would facilitate wholesale-market participation by qualifying aggregations of behind-the-meter resources, while prohibiting double compensation for the same service.

– Distribution utilities generally may not obstruct eligible resources’ participation in wholesale markets, subject to state-law exceptions and protections for distribution-system safety and reliability.

Energy Permitting (Division B, Title II, Subtitles A and B)

• Court challenges to energy “authorizations” (including leases, rights-of-way, easements, permits, orders, findings, and determinations) must be brought within 150 days after the date the grant or denial was made public.
• Courts are to provide expedited review. Courts may remand and impose a schedule (not to exceed 180 days) for action by an agency.
• BLM would be barred from requiring leases or imposing certain other requirements for oil and gas wells located on non-federal land if (1) the federal government owns less than 50% of the oil and gas within the drilling or spacing unit, or (2) some portion of the wellbore enters and produces from the federal mineral estate. Does not apply in Indian Country.
• Indian tribes may grant rights-of-way across tribal lands for any purpose; does not require Interior secretary approval if the right-of-way is granted under tribal rules that the Interior secretary has approved.
• Within 30 days after receiving right-of-way application for wind, solar, or geothermal projects, agencies (BLM or Forest Service) must determine the application is complete or identify missing information. EIS notice of intent (if applicable) must be published within 90 days of receipt of a complete application. Where no NEPA compliance is needed, agencies must approve or deny within 30 days of receipt of a complete application.
• Agencies to develop NEPA categorical exclusions for low disturbance activities.
• Agencies to develop NEPA categorical exclusions for construction, repair, maintenance, and upgrades to transmission or distribution facilities within existing rights-of-way.



Hardrock Mining Mill Sites (Division B, Title II, Subtitle B)

• Creates a new type of mill site (a specialized type of mining claim) that may be located within a hardrock mine plan of operations boundary for placement of tails, waste rock, or other “ancillary” activities necessary for mining.
• New mill sites may be located over existing lode or placer claims, but convey no mineral interests on their own.
• Mine operator may locate as many five-acre mill sites as reasonably necessary for its operations. These mill sites may not be patented.
• Establishes annual maintenance fees of $400 per mill site, payable on or before Sept. 1.
• Establishes an Abandoned Hard Rock Mining Fund to be funded by mill site maintenance fees.



Geothermal Leasing and Permitting (Division B, Title II, Subtitle C)

• Agencies to develop NEPA categorical exclusions for geothermal observation test projects (exploration projects impacting up to 10 acres, with no permanent roads and completed within one year).
• Provides for notices of intent for “casual use” geothermal activities; casual use means “activities ordinarily resulting in no or negligible disturbance of public land or resources.”
• Existing 10-year reduced royalty rate begins at operational start date, instead of the lease issuance date.
• Geothermal lease sales to be held annually.
• Geothermal drilling permits to be approved or denied within 30 days after submission of a complete application if NEPA compliance completed or not required.
• Creates a Geothermal Permitting Task Force and ombudsman within BLM to develop best practices and facilitate geothermal permitting.
• No federal permits required for activities conducted on non-federal surface where the United States owns less than 50% of the geothermal estate, the activity is permitted by a state, and notice of the state permit is provided to BLM. Does not apply in Indian Country.
• Provides cost-recovery authority to Interior secretary.
• Interior “Gold Book” to be updated with standard procedures and guidelines for geothermal permitting.
• Reduces NEPA compliance obligations for certain exploration activities and for placement of transmission or distribution lines no more than 20 miles in length within existing rights-of-way approved in the last 10 years.



Hydropower (Division B, Title II, Subtitle D)

• FERC to report to Congress on market barriers to hydropower development and proper compensation for hydropower related to federal rules and federal or state laws, with recommendations to remove barriers and encourage development.
• FERC may not require approval or license amendments for routine maintenance, repair, or replacement of project works. Substantial alterations or additions would require FERC approval.
• FERC to license micro hydrokinetic energy projects (installed capacity of not more than five megawatts and converts hydrokinetic energy from wave-, tide-, current-, or river-driven turbines into electricity) for 10 to 20 years. Licenses to be issued/denied within one year after submission; FERC to work with other permitting agencies to develop a joint schedule to facilitate compliance with this deadline.



Offshore Energy (Division B, Title II, Subtitle F)

• Interior must prevent “unreasonable interference with other uses” in approving offshore energy projects; under existing law, agency must prevent “interference with reasonable uses.” Eases permitting requirements for offshore energy projects. Does not apply to National Parks and other protected lands.
• Interior and energy secretaries to identify preferred routes on Outer Continental Shelf for transmission cables and sub-seabed infrastructure.
• Interior to act as lead agency for permitting offshore transmission and to develop regulations governing permitting process and involvement of other agencies.



Historic Preservation (Division B, Title III)

• Changes the definition for a property eligible for listing on the national historic register to limit such properties to “identifiable geographic” locations or features at which important events occurred (potentially making it more difficult to establish a “traditional cultural landscape”).
• Establishes two-year reviews for state and tribal historic preservation programs, and allows the government to suspend state historic preservation programs and any financial assistance awarded under them if the State Historic Preservation Officer (SHPO) “does not regularly comply with timelines for consultation, complete consultation expeditiously, or meet required metrics” in completing their Section 106 consultations, and to assume the functions of the SHPO/Tribal Historic Preservation Officer (THPO) until the program is in compliance.
• Narrows the definition of “undertaking” – the trigger for Section 106 consultation – to only proposed federal or federally assisted activities within the “direct” jurisdiction of the reviewing federal agency (previously included both the agency’s “direct” and “indirect” jurisdiction).
• Establishes statutory procedures for the Section 106 consultation process, with set timelines within which consulting parties must provide information, if it is to be considered as part of the agency official’s determination (e.g., substantive objections to the Section 106 report must be made within 30 days or the federal official need not respond to them.
• Commits sole discretion to reviewing agency official (i.e., unreviewable by courts) to determine that “other considerations” outweigh adverse impacts to historic properties.
• Defines “adverse effect” to historic properties as a reasonable, foreseeable consequence that directly alters qualifying characteristics, excludes “any visual, atmospheric, or audible element” unless it significantly diminishes the property’s historic character. Effectively limits consideration of factors that affect a person’s experience of the property but do not permanently affect the property itself, as well as effects to a portion of the historic property that would not affect the defining attributes of the property.
• Defines the area of potential effects in which the effects of an undertaking should be considered to exclude effects from other (e.g., non-federal) activities.
• Defines “undertaking” to both narrow the definition and to list multiple exclusions, including categories of exclusions consistent with exclusions from the NEPA definition of “major federal action.” Requires substantial federal control and responsibility.
• Creates an agency report process, permits agencies to decline mitigation when other considerations outweigh preservation, and allows final agency action without agreement.
• Imposes fixed deadlines; initial undertaking determination, 30-day information and response periods, a 60-day report deadline after the undertaking determination, a 90-day determination period, additional consultation, and ACHP comment deadlines.
• Allows the agency to proceed if a SHPO, THPO, Tribe, Native Hawaiian Organization (NHO), or local government fails to respond or provide substantive objections within 30 days.
• Requires biennial audits and program evaluations of SHPO and THPO programs; untimely performance may lead to disapproval, suspended agreements or grants, and Federal assumption of functions.
• Requires programmatic agreements for specified categories and gives a SHPO or THPO agreement priority when overlapping with a federal agency agreement.
• Requires Section 106 consultation to be completed concurrently with NEPA review, and allows a party to sue the agency in any court of competent jurisdiction for failure to comply.
• Makes remand without vacatur for a period not to exceed 180 days the exclusive judicial remedy for a violation, with an exception for preliminary injunctions based on claims other than NEPA and the NHPA.
• Generally vests original jurisdiction in courts of appeals; requires random assignment of judges; and requires claims to be brought within 150 days. Restricts challenges to parties who submitted substantive comments sufficient to put the agency on notice.
• For any supplemental decision documents issued after remand, limits challenge to flaws in the supplemental document, not the original document.
• Denies judicial review of a programmatic agreement by any party not a signatory to that agreement. Bars reopening review based on later National Register identification, nomination, or listing.

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[1] Marin Audubon Society v. Federal Aviation Admin., 121 F.4^th 902 (D.C. Cir. 2024)