On Friday, July 17th, the Advisory Council on Historic Preservation (ACHP) proposed a dramatic rewrite of the regulations that implement Section 106 of the National Historic Preservation Act (NHPA). Instructions from ACHP Vice Chairman, Travis Voyles, only give council members one week until July 24th to vote on the revisions.
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, often leading to better project outcomes.
Preservation Action’s team continues to review the proposed revisions and are working 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 might be the most significant rewrite of Section 106 in its history. The proposed 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 proposed regulations will actually lead to more delays and litigation.
Here’s some of what’s in the proposal:
- Eliminates 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
ACHP members have until July 24th to vote on the proposed revisions. Once approved the proposal will be sent to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review. Following review, the revisions will be posted in the Federal Register and the public will be given 30 days to submit comments.
As we continue to review these revisions, Preservation Action is engaging with members of Congress and working alongside our partners to provide the tools you need to respond effectively. Stay tuned for more!
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Additional Resources
- 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 Trust for Historic Preservation: Section 106 is Under Threat
- Senate Energy and Natural Resources Committee: Heinrich, ENR Members Release Statement Urging Advisory Council on Historic Preservation to Reject Rule Gutting Tribal Consultation
- 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