Late Friday afternoon, the Vice Chairman of the Advisory Council on Historic Preservation (ACHP) circulated a proposed rewrite of 36 CFR Part 800 — the implementing regulations for Section 106 of the National Historic Preservation Act.
Though preceded by months of discussion aimed at speeding up federal project delivery, the timing came as somewhat of a surprise. After all, just last month, the ACHP adopted a resolution directing staff to develop a timeline within 30 days for revising the regulations and providing Council members 60 days to submit additional comments before moving forward. That timeline never materialized however, although NCSHPO has continued diligently on efforts to provide comprehensive comments, ahead of the prescribed August 3rd deadline.
This announcement instead presented Council members with nearly a complete rewrite of the regulations and asked to participate in an unassembled vote with only one week’s notice — abandoning the previously outlined process. That departure from the process matters, and so does the proposal itself.
Upon initial review, one thing is clear: this is not a routine regulatory update. It is a fundamental rewrite of how the federal government identifies, considers, and resolves impacts to historic and cultural resources.
Fundamental Shift
Positioned to fundamentally change how Section 106 operates, the proposed rule shifts authority away from the collaborative consultation framework Congress established, in favor of unilateral federal agency control over nearly every stage of the process. That includes determining whether Section 106 applies, identifying historic properties, evaluating effects, deciding whether mitigation is appropriate, and ultimately determining whether preservation concerns are outweighed by other considerations.
Anyone who works in historic preservation understands that Section 106 has never been about stopping projects. To the contrary, countless hours have been spent finding practical ways to balance infrastructure, energy, housing, broadband, and disaster recovery with our nation’s irreplaceable historic and cultural assets.
What makes the Section 106 consultation process effective is that informed decisions are made by leveraging differing expertise before projects are finalized. SHPOs bring statewide preservation expertise, Tribes provide knowledge not found in agency files, and local governments understand community priorities. Together, those perspectives (coupled with applicants’ practical solutions) lead to better federal decision-making and help avoid costly mistakes.
From Consultation to Agency Control
Instead of a step-by-step consultation process, agencies would prepare a single Section 106 report that identifies historic properties, evaluates effects, and determines what mitigation (if any) is appropriate before circulating it for comment. SHPOs, THPOs, local governments, and other consulting parties would largely be responding to an agency’s completed analysis, rather than helping shape it throughout the process.
In practice, this means SHPOs, THPOs, Tribes, local governments, and other consulting parties would increasingly be asked to react to agency conclusions rather than help develop them. Consultation becomes less of a collaborative planning process and more of an opportunity to comment on decisions that have largely already been made.
Under the proposal, federal agencies would benefit from broad authority to establish consultation schedules, including modifying deadlines with little limitation. For offices already managing thousands of reviews each year, unpredictable and compressed timelines would make meaningful participation increasingly difficult.
The proposal also significantly narrows who participates in the process. Local governments would no longer be entitled to consult, and preservation organizations and interested members of the public would no longer be recognized as consulting parties. Public participation itself becomes largely discretionary, with agencies directed to weigh whether providing opportunities for public involvement is worth the associated costs and delays.
Perhaps most consequential are the proposed changes to what qualifies for Section 106 review in the first place. The proposal would exclude broad categories of federally connected actions, including certain state or locally administered federal programs, projects involving minimal federal funding or control, and actions carried out under delegated federal authority. It would also align many National Environmental Policy Act categorical exclusions with Section 106, potentially removing review for projects that currently receive historic preservation consideration.
Every project excluded from Section 106 is a project in which historic properties may never be identified, effects may never be evaluated, alternatives may never be considered, and opportunities to avoid or minimize harm may never be explored.
The proposal also narrows how effects on historic properties are evaluated. It limits adverse effects to those that are reasonably foreseeable, have a close causal relationship to the undertaking, and involve material alterations. Longstanding considerations such as changes to setting, visual impacts, and other indirect effects are reduced or removed. Questions also arise about how the proposal would affect consideration of places important to Tribes for their religious and cultural significance, particularly where impacts are not limited to direct physical alteration.
Equally significant is what happens at the end of the process. Under the proposal, mitigation becomes a matter of agency discretion. Memorandums of Agreement become optional, while agencies may instead issue unilateral Memorandums of Decision documenting how they will address effects or why they have determined that other considerations outweigh historic preservation.
Bottom Line
Many of these individual changes are in and of themselves are significant. Collectively, they would constitute the most significant rewrite of 36 C.F.R. Part 800 in more than two decades. The independent expertise of SHPOs, THPOs, Tribes, local governments, and consulting parties becomes increasingly advisory rather than collaborative. Instead, concentrating substantially greater authority within the federal agency responsible for carrying out the undertaking.
NCSHPO will continue its detailed review, work closely with our membership and partners, and provide resources to help the preservation community understand the proposal, engage in the rulemaking process, and ensure the voices of those charged with stewarding our nation’s historic places are heard.
