Policy Alert: Federal hydropower licensing and Section 106 changes

S. 5048 – Hydropower Licensing Affordability Act

This bill would amend Sections 4(e) and 18 of the Federal Power Act, two of the most important mandatory conditioning authorities in FERC hydropower licensing.

Section 4(e) allows federal land management agencies to require conditions necessary to protect federal reservations affected by hydropower projects, including Indian reservations. Section 18 allows the Secretaries of Interior and Commerce to prescribe mandatory fishways.

S. 5048 would limit both authorities by requiring conditions to address only the “direct adverse effect” of a hydropower project. That seemingly small change could significantly constrain the ability of agencies to address the full range of ongoing, indirect, or interconnected effects of dams on fish, rivers, federal reservations, and resources important to Tribes.

For many Tribes participating in hydropower licensing, Sections 4(e) and 18 are among the few authorities capable of producing mandatory protections rather than recommendations that FERC can choose to accept or reject.

S. 5048 Fact Sheet

H.R. 9855 – CURRENT Act

H.R. 9855 would substantially amend Section 401 of the Clean Water Act, another critical authority in hydropower licensing.

Among other changes, the bill would narrow the scope of Section 401 review, impose new standards and deadlines on certifying authorities, and specifically prohibit Section 401 certifications for hydropower projects from including conditions addressing the quantity, timing, or rate of water flow over, through, or around a dam.

That provision is particularly consequential for hydropower. Flow is directly connected to water temperature, fish habitat, migration, water quality, aquatic ecosystems, and the availability of culturally important species. Section 401 has been an important mechanism for states—and Tribes with applicable Clean Water Act authority—to ensure that hydropower licenses protect these resources.

H.R. 9855 Fact Sheet

S. 4944 – American Energy and Mineral Infrastructure Act of 2026

S. 4944 is a much broader permitting reform bill, but it contains many of the same proposed changes to Clean Water Act Section 401.

Like H.R. 9855, it would prohibit Section 401 hydropower conditions related to the quantity, timing, or rate of flows and would otherwise narrow the scope and implementation of Section 401. It also includes significant changes to other federal permitting and environmental review processes, including NEPA and Clean Water Act Section 404.

Because this is a broader permitting package, it could have consequences well beyond hydropower for projects affecting Tribal lands, waters, treaty and trust resources, cultural resources, and places important to Indigenous communities.

S.4944 Fact Sheet

NHPA Section 106 rulemaking

Separate from Congress, the Advisory Council on Historic Preservation (ACHP) is moving forward with major revisions to the regulations implementing Section 106 of the National Historic Preservation Act.

Section 106 is the process that requires federal agencies to consider impacts to historic and cultural properties and to consult with Tribes when federally funded, permitted, licensed, or approved projects may affect places of religious or cultural significance.

The ACHP voted in July to advance a proposed rewrite of the Section 106 regulations, which is currently undergoing federal review before publication as a proposed rule. The formal public-comment period has not yet begun.

The National Association of Tribal Historic Preservation Officers (NATHPO), Cultural Heritage Partners, and others have raised serious concerns that the proposed changes could weaken meaningful Tribal consultation, narrow which culturally significant places receive consideration, reduce opportunities to avoid or mitigate harm, and give federal agencies greater unilateral authority within the Section 106 process.

For Tribes involved in hydropower licensing, transmission, energy development, infrastructure projects, or other federal permitting, these changes could have significant practical consequences.

Sec 106 Fact Sheet

We will update this list periodically as new information and resources become available.

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