Ecological Restoration Project Permitting Act of 2026

(a) Establishment

(1) In general. Not later than 1 year after the date of enactment of this Act, the Secretary shall, consistent with section 404(e) of the Federal Water Pollution Control Act (44 U.S.C. 1344(e)) and in accordance with this section, issue a general permit under that section for ecological restoration projects to authorize activities associated with ecological restoration projects that the Secretary determine will lead to a net increase in habitat functions and services in altered or degraded habitats or former habitats.

(2) Consultation. In developing the ERP permit, the Secretary shall consult with—

(A) the Administrator;

(B) the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service;

(C) the Secretary of Commerce, acting through the Administrator of the National Oceanic and Atmospheric Administration;

(D) the Secretary of Agriculture, including the Chief of the Natural Resources Conservation Service;

(E) the Chair of the Council on Environmental Quality; and

(F) the Chair of the Advisory Council on Historic Preservation.

(3) Inclusion. In developing the ERP permit, the Secretary shall ensure that the ERP permit expressly authorizes the use of engineered components that are integral to implementing an ecological restoration project, including dikes, berms, grade-control structures, water level control structures, levee modifications or setbacks, excavation, bank stabilization, and road-stream crossing replacements, subject to the conditions that—

(A) the primary purpose of the project is to serve as an ecological restoration project; and

(B) the project as a whole results in a net increase in habitat functions and services.

(4) Exclusions

(A) In general. In developing the ERP permit, the Secretary shall ensure that an ecological restoration project is not eligible for the ERP permit if the ecological restoration project—

(i) subject to subparagraph (B), includes—

(I) the construction, expansion, or conversion to permanent use of any road, driveway, parking area, or other feature required for vehicular access in waters of the United States, including any associated grading, clearing, excavation, fill, drainage structures, boardwalks, steps, retaining structures, and surfacing; or

(II) the construction, expansion, repair, replacement, modification, or conversion to permanent use of any new trail or recreational pathway intended for pedestrian, bicycle, equestrian, or motorized recreational use in waters of the United States after completion of the project, including any associated grading, clearing, excavation, fill, drainage structures, boardwalks, steps, retaining structures, and surfacing;

(ii) includes the application, discharge, placement, or injection of any persistent chemical substance on Federal land or into waters of the United States that is not otherwise approved for use in aquatic environments, including any substance that is—

(I) reasonably anticipated to persist in soil, sediment, or water for extended durations based on the chemical properties of the substance, including substances that are determined to be persistent, bioaccumulative, and toxic under applicable Federal guidance; or

(II) a perfluoroalkyl or polyfluoroalkyl substance, polychlorinated biphenyl, an organochlorine pesticide, dioxin, or any other chemical that is likely to result in long-term persistence or long-term adverse biological effects in the project area; or

(iii) would be conducted on Federal land where activities within the proposed ecological restoration project are prohibited by an Act of Congress or Presidential proclamation.

(B) Exceptions. The exclusion described in subparagraph (A)(i) shall not apply to—

(i) temporary construction access routes, footpaths, temporary work pads, or coffer dams that are identified and specifically described in the applicable preconstruction notification or summary report under subsection (b), subject to the conditions that the features are temporary features that are removed and the terrain is restored to pre-construction contours on completion of the work of the project; or

(ii) the construction, expansion, repair, replacement, or modification of a road crossing, ford, berm, new trail, recreational pathway, or associated drainage structure (including a culvert or bridge) if—

(I) the infrastructure is included solely to improve habitat functions and services (including fish passage, floodplain reconnection, vegetation reestablishment, or reduction of erosion);

(II) the infrastructure is incidental to, and not the purpose of, the ecological restoration project;

(III) with respect to a new road, trail, pathway, or associated infrastructure, the new road, trail, pathway, or associated infrastructure is the minimum necessary in consideration of the goals and objectives of the project; and

(IV) the ecological restoration project, after consideration of the construction, expansion, repair, replacement, or modification, results in a net increase in habitat functions and services.

(b) Ecological restoration projects

(1) Non-Federal projects

(A) Pre-construction notification. A sponsor seeking to carry out a non-Federal project subject to the ERP permit shall submit to the applicable District Engineer a preconstruction notice that includes—

(i) information with respect to baseline conditions at the site of the proposed project, including—

(I) a general description of aquatic and terrestrial habitat types at the site; and

(II) a map of aquatic and terrestrial habitat types at the site, the boundaries of which shall, to the extent practicable, be based on recent aerial imagery or similar information and verified with photo points or other field-based data points for each mapped habitat type;

(ii) an illustration of the elements of the proposed project drawn over a copy of the map required under clause (i)(II); and

(iii) the objectives of the proposed ecological restoration project and a description of the techniques or mechanisms to be used to increase habitat functions and services on the project site to meet those objectives.

(B) Completeness

(i) In general. Not later than 30 days after the date on which a preconstruction notice under subparagraph (A) is submitted to a District Engineer, the District Engineer shall—

(I) notify the applicable sponsor that the preconstruction notice is considered complete; or

(II) provide to the sponsor a notification that the preconstruction notice is incomplete that includes a description of the information required for the preconstruction notice to be considered complete.

(ii) Submission of incomplete information. If a District Engineer provides to a sponsor a notification described in clause (i)(II) and the sponsor fails to provide all of the information described in that notification, the District Engineer—

(I) is not required to provide another notification under that clause; and

(II) shall not begin verifying that the project that is the subject of the notice is subject to the ERP permit until the date on which the sponsor provides all of the information described in the notification.

(C) Verification timeline

(i) In general. Not later than 45 days after the date on which the applicable District Engineer determines that a preconstruction notification is complete under subparagraph (B), the District Engineer shall provide to the applicable sponsor a final notification that verifies whether the proposed non-Federal project is subject to the ERP permit.

(ii) Conditions. If a District Engineer verifies that a non-Federal project is subject to the ERP permit under clause (i), the District Engineer may impose such conditions as the District Engineer determines appropriate to ensure that the non-Federal project remains subject to the ERP permit.

(iii) Failure to act. If a District Engineer fails to act on a completed preconstruction notice by the date described in clause (i), the non-Federal project shall be considered to be subject to the ERP permit as of that date.

(D) Activity authorized

(i) In general. Subject to clause (ii), a sponsor may not begin carrying out a non-Federal project verified under this paragraph until the earlier of—

(I) the date on which the District Engineer provides the notification described in subparagraph (C)(i); and

(II) the date described in subparagraph (C)(iii).

(ii) Additional consultations. With respect to a non-Federal project for which a consultation under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) or pursuant to section 306108 of title 54, United States Code, is required, if, on the applicable date under clause (i), that consultation has not yet been completed, the sponsor of the project may not begin carrying out the non-Federal project until the date on which any such consultations are completed.

(2) Federal projects

(A) In general. A sponsor seeking to carry out a Federal project under the ERP permit shall submit to the applicable District Engineer a summary report that—

(i) describes the proposed Federal project; and

(ii) includes the information described in each of clauses (i) through (iii) of paragraph (1)(A).

(B) Activity authorized

(i) In general. A sponsor may not begin carrying out a Federal project until the date that is 30 days after the date on which the summary report under subparagraph (A) is submitted to the applicable District Engineer.

(ii) Assumption of review. In reviewing a summary report under subparagraph (A), a District Engineer shall presume that another Federal agency has verified that the Federal project is subject to the ERP permit, and for purposes of this section the project described in the summary report shall be considered to be verified.

(3) Low-risk projects

(A) In general. In establishing the ERP permit, the Secretary, in consultation with the Administrator, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Chair of the Council on Environmental Quality, and the Chair of the Advisory Council on Historic Preservation, may establish a category of ecological restoration projects that the Secretary determines have a low risk for negatively impacting—

(i) a species listed as a threatened species or an endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);

(ii) habitat designated as critical for a species described in clause (i); and

(iii) historic properties.

(B) Simplified process. The Secretary may establish simplified requirements for ecological restoration projects that are determined to be low risk under subparagraph (A), including simplified project proposal, preconstruction notification, and other documentation requirements.

(c) Scope of authorized activities

(1) In general. The authorization of an ecological restoration project under the ERP permit—

(A) applies only to activities specifically described in, and carried out in accordance with, the preconstruction notification or summary report under subsection (b), as applicable, and any documentation submitted in conjunction with the preconstruction notification or summary report, including any general, regional, or project-specific conditions imposed on the ecological restoration project; and

(B) may include—

(i) discharges of dredged or fill material and other activities, including nature-based and engineered components that are integral to the ecological restoration project, including—

(I) engineering, construction, stabilization, habitat establishment, adaptive management, and maintenance; and

(II) subject to subsection (a)(4)(A)(ii), the use of approved and licensed chemicals for invasive species management and control; and

(ii) activities within any area subsequently determined to be waters of the United States, to the extent that the activities are specifically described in the documentation described in subparagraph (A).

(2) Unrelated future activities. The authorization of an ecological restoration project under the ERP permit does not apply to a discharge of dredged or fill material for any future activity that is not specifically described in the documentation described in paragraph (1)(A), including any future activity that involves discharges regulated under the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).

(d) Suspension; revocation. In establishing the ERP permit, the Secretary shall, consistent with existing permit procedures under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344), establish procedures for the suspension, modification, and revocation of ecological restoration projects verified under the ERP permit.

(e) Permit term

(1) In general. Notwithstanding section 404(e) of the Federal Water Pollution Control Act (33 U.S.C. 1344(e)) and any regulation, guidance, or practice of the Secretary establishing a shorter duration for general or nationwide permits under that section (including section 330.6(b) of title 33, Code of Federal Regulations (or a successor regulation)), the ERP permit shall be issued for a term of 10 years.

(2) Renewal. The Secretary may reissue or extend the term of the ERP permit.

(3) Expiration

(A) In general. On expiration of the ERP permit, no new activities may be authorized pursuant to the ERP permit unless the Secretary has reissued or extended the ERP permit under paragraph (2).

(B) Continued validity of prior verification. Any activity verified in writing by a District Engineer as authorized by the ERP permit before the date on which the ERP permit expires shall continue to be authorized after that date, and a sponsor may continue to carry out any such activity, including any necessary maintenance and management required to maintain net increases in habitat functions and service and any required monitoring and reporting required in accordance with—

(i) the preconstruction notification or summary report under subsection (b), as applicable, and any documentation submitted in conjunction with the preconstruction notification or summary report, as verified by the District Engineer;

(ii) all applicable general and regional conditions in effect on the date of verification of the ecological restoration project; and

(iii) any project-specific conditions included in the verification.

(4) Rule of construction. Nothing in this subsection affects the authority of the Secretary to suspend, modify, or revoke an authorization or to require corrective measures, consistent with applicable law and permit procedures, in the event of noncompliance or where necessary to ensure that an activity will have no more than minimal individual and cumulative adverse environment effects.