Section 106 is Under Threat!

New River Gorge National Park and Preserve staff at a Section 106 public consultation meeting in 2024. Photo from the Charleston Gazette.

On Friday, July 24, the Advisory Council on Historic Preservation (ACHP) held an unassembled vote to advance revisions to regulations implementing Section 106 of the National Historic Preservation Act (36 CFR Part 800), with 16 voting in favor, 5 opposed, and 2 abstentions. These new rules would dramatically diminish the effectiveness of the NHPA and the current legal protections for historic and cultural places.

Since the enactment of NHPA 60 years ago, Section 106 has been the foundational requirement for federal agencies to "take into account" the effects of their actions on historic properties and places, enabling public participation and comment in the process, giving voices to state and local governments and tribal communities, and often improving the project and enhancing the outcome of projects.

Currently, Section 106 review happens when a project involves a federal permit (like Clean Air, Water, or Highways), or receives federal funding (Congressionally-Directed Spending, National Park Service, etc.). The entity applying for the permit or funding must go through a consultation process with state and tribal historic preservation offices where they review what historic/cultural resources would be affected by the project, and they work together to try to mitigate any damages.

Through this process, state agencies and the public usually have a 30-day comment period to influence how any damages can be avoided or mitigated. The federal agency takes these into consideration and can work with the public on creative solutions to save or avoid historic/cultural resources altogether.

The final result of the Section 106 review is a Programmatic Agreement between the federal agency and the state/tribal historic preservation office where the final resolutions are laid out and agreed to. There have been many win-wins through this current process where projects are getting done, and historic resources are being saved and repurposes. Now the ACHP is proposing to change this process.

Some of the most concerning changes proposed include:

• Federal agencies will no longer be required to try to avoid or minimize damage to America’s historic architecture, neighborhoods, and landscapes.
• State and local governments will no longer have the right to be notified or have the opportunity to comment when federal agencies propose to damage or destroy historic places within their jurisdiction.
• The public’s opportunity to comment on federal historic preservation policies or actions would now be entirely optional, at the discretion of the federal agency.
• The federal government will no longer be required to consult with Native American tribes or seek their expertise regarding their own significant cultural resources.
• Significant cultural landscape features would no longer be considered historic properties, so federal agencies would no longer be required to take into account any adverse effects to significant places such as the Grand Canyon.
• Federal agencies would no longer be required to consider the reasonably foreseeable consequences of their actions on historic properties, other than direct actions that physically damage the properties.

Now that the ACHP has voted, what's next? According to the National Council for State Historic Preservation Offices' article, now that the proposal is moving forward, these things typically follow a path like this:

Step 1 — OIRA Review
The proposal moves to the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget for regulatory review and potential interagency coordination.

Step 2 — Proposed Rule Published
If OIRA review is completed, the ACHP publishes a Notice of Proposed Rulemaking in the Federal Register.

Step 3 — Public Participation
This is when formal public comment begins. Tribal consultation, consultation with State Historic Preservation Offices, and comments from local governments, preservation organizations, applicants, and the public become part of the official record.

Step 4 — Final Rule Development
The ACHP reviews comments, revises the proposal as appropriate, and prepares a final rule for consideration by the Council.

Step 5 — Final Review and Publication
Following a second OIRA review, the final regulation may be published in the Federal Register, typically becoming effective 30 days later.

We will alert you to any public comment opportunity or timeline changes. If you have any questions, please reach out at any time!

PAWV is preparing our own comments, and we are putting together a list of examples where Section 106 has had a positive outcome in West Virginia communities. If you have taken part in a review, for instance for a bridge or highway project, let us know. We want to hear your experiences and would like to include them in our final comments that we submit to our Senators and other elected officials.

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