Preservation Action

On Friday, July 24th, the Advisory Council on Historic Preservation (ACHP) voted to approve a disastrous rewrite of the regulations that implement Section 106 of the National Historic Preservation Act (NHPA). Preservation Action is appalled by this vote and stands with our preservation colleagues opposing this devastating move.

While the ACHP announced an interest in revising the Section 106 regulations with the aim of speeding up federal project delivery earlier this year, this proposal goes much further than anticipated and blows past their own established procedures for how they would go about these revisions.

Section 106 of the NHPA is the foundational requirement for federal agencies to take into account a federal project’s impact on historic resources by providing State, Tribal, and local governments and the public with a voice in the process, but does not mandate an outcome. While not always perfect, the Section 106 process has worked effectively and efficiently, leading to better project outcomes.

The proposed Section 106 revisions would have a devasting impact on historic resources across the country. Preservation Action strongly opposes the proposed revisions and continues to work with our partners to organize effectively.

What’s in the Proposal

At the same time as we are celebrating the 60th anniversary of the National Historic Preservation Act, the proposal from the ACHP is the most significant rewrite of Section 106 in its history. The revisions shift authority away from collaborative consultation and toward unilateral agency control, undermining the ability of states, tribes, local communities, and the public to protect their important historic resources. Despite the desire to accelerate the federal review process, the regulations will actually lead to more delays and litigation.

Here’s some of what was in the proposal:

• Elimination of meaningful consultation with State and Tribal Historic Preservation Offices. Agencies would prepare a single report— identifying historic properties, evaluating effects, and deciding mitigation (if any) —before circulating for comment, instead of developing it alongside states, Tribes, and other consulting parties.
• Fewer seats at the table. Local governments would be cut out of the consultation process. The public and preservation organizations would no longer be considered as consulting parties. Public input would become entirely discretionary.
• Fewer projects reviewed. Broad categories of federally connected work — including projects with minimal federal funding/control and those aligned with National Environmental Policy Act (NEPA) categorical exclusions — could be exempted from review entirely.
• Significant cultural landscapes would no longer be considered historic. The proposal redefines what is considered “historic property”. This would exclude certain cultural landscapes, including mountains, valleys, and ethnographic landscapes, reducing protections for Tribal sacred sites and Traditional Cultural Properties. A requirement for historic property to be “geographically compact” could also impact large urban and rural historic districts.
• No longer required to avoid, minimize, or mitigate harm. In cases of adverse effects, federal agencies can decide that other considerations outweigh historic preservation on a federal project and are not required to avoid or minimize harm. It also limits what is considered an adverse effect to those that are reasonably foreseeable — cutting out longstanding consideration of setting, visual impacts, and indirect effects.

As the historic preservation community knows, Section 106 has never been about stopping projects; it’s about bringing multiple sources of expertise to the table before decisions are final. This proposal moves most of that expertise to the sidelines.

Next Steps

Now that the ACHP has voted to approve the proposed revisions, the proposal was submitted to the Office of Management and Budget’s Office of Information and Regulatory Affairs, where they will review the proposal. Following review, the revisions will be posted in the Federal Register and the public will have the opportunity to submit comments.

You can read more about how we got here and what should come next from our colleagues at the National Conference of State Historic Preservation Officers here.

What You Can Do

Preservation Action is engaging with members of Congress and working alongside our partners to provide the tools you need to respond effectively. We encourage you to stay active and alert. Here’s what you can do:

1. Begin preparing to submit substantive written comments on the proposed revisions as soon as the rule is published in the Federal Register. Learn more about preparing those comments from Cultural Heritage Partners here.

2. Reach out to your members of Congress to alert them to the ACHP’s proposed revisions and the devastating impact they would have on historic resources in your community.

Check out Preservation Action’s latest Action Alert to easily write, edit, and send a letter to your members of Congress today!

If you have a contact in your Representative or Senator’s office, reach out to them directly. If you need assistance reaching congressional staff, contact Preservation Action at rnaylor@preservationaction.org.

3. Submit examples of Section 106 success stories. Do you have stories of times the Section 106 process worked well and benefitted communities? Sharing those experiences can help strengthen our advocacy efforts as work to combat frequent misconceptions.

4. Help us spread the word! Share this alert and additional resources with your constituencies. Let them know how this proposal impacts historic resources in your community and encourage them to stay engaged in the process.

5. Stay up to date on the latest developments including action alerts, be sure you are signed up for our weekly Legislative Update and follow us on Facebook, Instagram, and LinkedIn.

Stay tuned for more!

Additional Resources

• National Trust for Historic Preservation: Section 106 is Under Threat
• Cultural Heritage Partners: ACHP Proposes New Regulations that Devastate Protections for Historic Properties
• National Conference of State Historic Preservation Officers: The End of Section 106 as We Know It?
• National Association of Tribal Historic Preservation Officers: ACHP Advances Sweeping Revisions to the Section 106 Regulations
• National Preservation Partners Network: Section 106 Advocacy Alert
• American Cultural Resources Association: ACHP Draft Proposed Regulations: An Analysis

Responses From Elected Officials

• Senate Energy and Natural Resources Committee: Heinrich, ENR Members Release Statement Urging Advisory Council on Historic Preservation to Reject Rule Gutting Tribal Consultation
• Rep. Leger Fernández: Leger Fernández, Pingree Condemn Rushed Effort to Gut Tribal Consultation and Historic Preservation Protections
• House Natural Resources Committee Democrats: Huffman: Trump’s Loyalist-Stacked Council Votes to Bulldoze America’s History

Press Coverage

• Washington Post: Trump Officials Seek to Weaken Historic Preservation Reviews of Projects
• CNN: Trump Administration Seeking to Rewrite Historic Preservation Rules to Smooth Way for Pet Projects
• NPR: Trump Allies are Poised to Weaken Protections for Historic Sites- Not Just in DC