Section 106 Exemptions and National Register Obstructions

There are occasionally legislative efforts to exempt federal agencies and departments from fulfilling their responsibilities under the National Historic Preservation Act (NHPA). These efforts by lawmakers, sometimes driven by a lack of understanding of how the NHPA works, are usually prompted by specific local concerns such as favored road or infrastructure projects and result in specific legislative proposals to exempt a project from Section 106 review. But sometimes lawmakers seek broader blanket exemptions types of projects or ways to prevent National Register listings as a means to prevent or bypass the consideration required by Section 106. Both narrow exemptions and broad exemptions represent a threat to historic places and set a precedent that weakens the NHPA and prevents states, tribes and local communities from having input on what is important to them.

The greatest exemption threat over the last several years has been an effort to amend the NHPA to prevent historic designation of federal properties when objections are raised based on national security. The legislation also calls for the National Park Service to identify a way to expeditiously de-list federally owned historic sites when a concern over national security is raised.

Under current law, federal agencies are able to manage their historic properties while simultaneously protecting America’s national security interests and maintaining military readiness. The NHPA requires federal agencies to identify and care for their historic places, but does not prevent or prohibit federal agencies from managing or maintaining their properties in whatever way necessary to protect America’s national security interests. Recognizing this, officials with both the Department of Defense and the Department of the Interior have said the change is not needed.

Given that the NHPA and National Register listing does not prevent federal agencies from using and maintaining their properties in ways supportive of their missions, and rather only establishes a process for consultation and potential mitigation of effects, no change should be necessary.