Tribal Nations Oppose BAAJA (S. 5653) as Amended

Bipartisan American Affordability and Jobs Act of 2026

The Bottom Line

• The newly released Manager’s Amendment does not fix BAAJA: despite minor tweaks, it leaves intact narrowed Section 106 reviews, unilateral agency overrides of sacred places, THPO grant suspensions, and a ban on courts stopping unlawful projects.

• Tribal Nations should not have to choose between infrastructure development and the protection of our cultural heritage. That is a false choice.

• Tribal Nations support permitting reform, responsible infrastructure, and building and moving more energy. We have consistently been good partners in permitting.

• Bringing Tribal Nations to the federal decision-making table early in the process speeds the permitting decisions by allowing Tribal experts to provide federal officials with information that can help shape the project to avoid legal pitfalls and harm to cultural resources.

• BAAJA amends the NHPA, Clean Water Act, NEPA, Endangered Species Act, and Federal Power Act in a single 494 page bill, with no hearing, no committee markup, and no government-to-government consultation with Tribal Nations.

• These changes are in deep conflict with federal trust and treaty obligations and fail to respect Tribal Sovereignty.

1. Narrows Section 106 Review and Reduces Tribal Participation

National Historic Preservation Act, Division B, Title III (Sec. 2301)

Why it matters: Section 106 review is a critical tool for ensuring Tribal Nations have a meaningful voice in federal decisions affecting historic properties, including sacred places and cultural resources. Unlike regulatory changes, BAAJA writes the narrowing into statute, where it is far harder to fix.

• Narrowed definitions and new exemptions ("undertaking," "adverse effect," "area of potential effects") reduce when Section 106 review is triggered and continue to harm mitigation. For example, projects whose only federal involvement is a loan, grant, or other financial assistance are excluded.

• Tribal consultation becomes box-checking. An agency controls the “Section 106” report, decides alone if a project causes harm to Tribal Nations’ historic properties, and fulfills consultation simply by replying in writing to Tribal comments on the report.

• The federal agency remains the sole entity to determine whether historic properties are present and whether harm rises to the level of requiring consideration of mitigation measures, with no requirement to actually consider information submitted by Tribal Nations, despite Tribal Nations and our cultural experts being the only ones qualified to make that determination.

• "Other considerations" can override sacred places. An agency may

• decline to consider measures to avoid, minimize, or mitigate harm whenever, in its sole discretion, other considerations outweigh historic preservation, and courts must give that decision substantial deference.

• Consultation on a statutory clock. If a Tribal Nation does not file substantive objections within 45 days, the agency need not respond to objections filed after.

2. Imposes Inappropriate Federal Oversight on THPOs

Tribal Historic Preservation Officers

Why it matters: THPO capacity challenges are the result of chronic federal underfunding and neglect. BAAJA responds to a problem of the federal government’s own making by penalizing Tribal Nations and shortening deadlines.

• New federal evaluations of every Tribal historic preservation program, with undefined performance standards

• Missed deadlines mean potential loss of THPO status and funding, including suspension of Historic Preservation Fund grants

• Federal bypass of THPOs, allowing agencies to sign agreements with the Advisory Council on Historic Preservation in lieu of a THPO

• Funding is a promise, not a guarantee. The $200 million for the Historic Preservation Fund under BAAJA is only “authorized to be appropriated,” and it replaces the current automatic deposit.

3. Limits Judicial Review and Removes Real Remedies

Why it matters: When federal agencies fail to consult, the courts are often a Tribal Nation’s last avenue to require the federal government to consider information that could protect its heritage. These are not nuisance lawsuits.

• 150-day statute of limitations to file suit

• Narrowed standing and most claims begin in federal courts of appeals

• Remand without vacatur or preliminary injunction is the only remedy for a Section 106 violation: a project keeps moving even after a court finds the NHPA was broken

• Only 45 days for a Tribal Nation to raise substantive objections to an agency’s Section 106 report

• A double standard, where the same bill gives project applicants a new right to sue agencies that miss consultation deadlines and directs courts to grant them injunctive relief

4. Restricts Tribal Authority to Protect Water

Clean Water Act §401 (Secs. 1202–1203) and §404

Why it matters: Tribal Nations must be able to require safeguards and deny certification when water quality requirements cannot be met.

• New restrictions and heightened evidentiary burdens on Tribal and state water quality certification, substantially limiting ability to protect Tribal waters from harmful projects.

• Conditions must be the “least burdensome option” and meet a “clear and convincing evidence” standard, neither defined.

• Denials require proving a negative: that no alternative to denial exists

• Expands the types and sizes of projects eligible for streamlined §404 nationwide permits, limits consideration of impacts on Tribal waters and resources, and makes it harder to challenge potentially unlawful permits in court.

5. Weakens NEPA and Sidelines Tribal Expertise

National Environmental Policy Act

Why it matters: NEPA is how Tribal Nations get early notice and a voice on projects affecting our lands, resources, and communities.

• Narrows the definition of “major federal action,” so fewer projects trigger review

• Agencies must ignore project alternatives inconsistent with the developer’s goals, other than “no action”

• Removes “special expertise” as a basis for cooperating agency status, the very ground on which many Tribal Nations have earned a seat at the table

• Limits consideration of Tribal environmental and cultural analysis

6. Undermines the Endangered Species Act

ESA Section 7

Why it matters: Many Tribal Nations hold treaty rights tied to species like salmon. Weakening ESA review weakens those rights.

• Limits review of cumulative impacts on endangered species and constrains adaptive management

• Redefines “best available science” so credible evidence of risk can be discounted if it cannot be predicted with complete certainty

• Gives federal appeals courts exclusive jurisdiction over Section 7 cases, away from the federal district courts closest to the issue

• Allows states to take over Section 7 consultation, leaving states primarily in charge of analyzing impacts to Tribal rights

7. Risks of Locking In Approvals, Even When They Are Wrong

Title IV, “Project Certainty”

Why it matters: Projects approved without meaningful Tribal consultation would likely be cemented in place for decades.

• Risks locking in long-term fossil fuel development, drilling, and public land mining approvals

• Strongly disincentivizes future administrations from reversing approvals even when new information, legal errors, or analytical errors come to light

• Language is sweeping enough to effectively block future regulations affecting a covered project

• Stifles judicial review of covered approvals

The Senate vote is scheduled for Monday, November 9. Your call can make the difference.

Tell your Senators to vote NO on BAAJA (S. 5653) unless these issues are fixed. A call takes less than two minutes.

1. Call (202) 224-3121 and ask for your Senator by name. Not sure who your Senators are? Find them here.

2. Use the script below. You’ll likely speak to a staffer or leave a voicemail. Both count.

3. Call again and ask for your second Senator. Every state has two.

Your Call Script

Hello, my name is [your name], and I’m a constituent from [city, state]. [Optional: I am a citizen of [Tribal Nation].]

I’m calling to urge Senator [name] to vote NO on BAAJA, S. 5653, unless it is fixed. Tribal Nations support permitting reform, but this bill was written without a single hearing or consultation with Tribal Nations, and it puts sacred places, water, and Tribal sovereignty at risk and fails to speed up permitting decisions

Please tell the Senator to vote NO unless the bill:

1. Restores meaningful Section 106 Tribal consultation, so Tribal Nations, not federal agencies alone, help to determine what is sacred and what effects will be on those sacred places.

2. Ensures Section 106 review is triggered for our sacred spaces, including by amending the definitions of “undertaking” and “adverse effects”.

3. Removes the penalties for and federal bypass of Tribal Historic Preservation Officers.

4. Protects access to the courts, so projects can’t keep moving after a court finds the law was broken and sufficient Section 106 did not take place.

5. Preserves Tribal authority to protect water under the Clean Water Act

6. Keeps Tribal expertise in NEPA reviews

7. Maintains Endangered Species Act protections for wildlife

8. Drops the Title IV “project certainty” lock-in of approvals, even when they’re wrong and completed without sufficient review.

“It’s permitting changes reach well beyond transmission, into mining, oil and gas, geothermal, hydropower, and offshore leasing. And finally, it gives project sponsors enforceable remedies while substantially limiting the ability of the public, states and tribes to stop unlawful approvals.”

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“BAAJA gives federal officials broad discretion over permitting decisions but adds no safeguards to ensure that those decisions rest on a developed record, community input and sound science.”

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“The bill limits the alternatives an agency must study to those that meet the goals of a non-federal sponsor (Sec. 1105). The practical result is that the sponsor frames the question the agency answers, and the agency has no statutory duty to test that framing against the record of affected tribes and communities.”

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“BAAJA limits judicial review for the public, states and tribes while bolstering relief for sponsors.”

-Letter submitted 10/6/2026 by the Attorneys General of New Mexico, with concurring signatures from the Attorneys General of Arizona, Hawai’i, Minnesota, Nevada and Oregon

“Without amendment, some of the bill’s provisions will unnecessarily intrude upon states’ rights, harm critical resources in our states, and create uncertainty in ways that undermine the purposes of the bill. We further fear that these provisions will add to historical inequities and limit the ability of states – as well as Indigenous peoples and communities – to ensure appropriate environmental and public health protections for their residents.”

-Letter submitted 10/21/2026 from the Attorneys General of Massachusetts, California, Washington, Vermont, Delaware, Oregon, Maine, Illinois, and Arizona

“Sec. 1202 requires that state 401 certification (e.g., for hydroelectric licensing) conditions must be the least burdensome needed to maintain water quality, and the burden of proof for conditional grants of certification and denials of certification switches under this bill to be placed on states. This will make it more difficult for Washington to protect water quality

and increases the litigation burden on our agencies while undermining project permit certainty.”

-Washington Department of Fish and Wildlife’s Analysis of BAAJA

“While certain provisions of the legislation offer opportunities to advance these shared goals, we have substantial concerns about the proposed changes to Section 401 of the Clean Water Act (CWA), Section 106 of the National Historic Preservation Act (NHPA), environmental review under the National Environmental Policy Act (NEPA), and consultation requirements under the Endangered Species Act (ESA). These changes risk undermining state authority, weakening key environmental protections, and creating implementation challenges that ultimately impede rather than expedite project delivery.”

-Letter submitted October 30, 2026, by the Governors of New Mexico, Oregon and Washington