The Advisory Council on Historic Preservation voted in July to advance sweeping regulatory changes to Section 106 of the National Historic Preservation Act. By dismantling public participation requirements and narrowing the definition of historic properties, the proposed rules threaten to strip federal protections from vast categories of American cultural heritage.
In Plain English: The Clinical Takeaway
- Regulatory Shift: The Advisory Council on Historic Preservation (ACHP) has advanced rules that alter how federal agencies must evaluate the impact of construction projects on historic and cultural sites.
- Public and Tribal Exclusion: Federal agencies would gain the discretion to bypass public comment periods and eliminate mandatory consultations with Tribal Nations.
- Narrowed Definitions: Future protections would exclude non-compact natural features and properties lacking built structures, affecting battlefields, sacred indigenous landscapes, and major archaeological resources.
Dismantling Section 106 Consultations
Established under the National Historic Preservation Act, Section 106 has legally required federal agencies since 1974 to evaluate the effects of their actions, licenses, and permits on properties listed in or eligible for the National Register of Historic Places. Under the existing framework, agencies must attempt to minimize harm and consult directly with Tribal Nations regarding culturally significant resources.
The newly advanced regulations overhaul this mechanism. According to the reported policy changes, federal agencies will receive the discretion to determine whether public participation is useful, effectively deciding independently whether to notify the public or solicit comments. Furthermore, agencies would no longer be legally bound to consult with Tribal Nations, despite legal precedents recognizing Tribes as domestic, dependent nations requiring government-to-government consultation.
Under the revised reporting structure, agency officials will prepare a Section 106 report and circulate it to State Historic Preservation Officers, Tribal Preservation Officers, and consulting parties for review. However, officials will carry no legal obligation to incorporate or respond to feedback before issuing a final determination, effectively transforming the process from a consensus-seeking exercise into unilateral agency discretion.
Narrowing Definitions and Excluding Landscapes
The regulatory changes redefine what qualifies as a “historic property.” Under the proposed text, a protected site must include tangible human improvements—namely built structures—and must be geographically compact. This redefinition excludes broad categories of historical and cultural locations across the United States.
Landscapes lacking compact built infrastructure, such as the battlefields of Gettysburg and the Little Bighorn, cultural landmarks like Wyoming’s Devil’s Tower or the Black Hills of South Dakota, and petroglyph sites in Chaco Canyon, face diminished or total loss of protection. The rules explicitly preclude non-compact natural features, valleys, bodies of water, and ethnographic landscapes, which carry deep spiritual and historical meaning for American Indian groups and Native Hawaiian organizations.
Additionally, mitigation requirements are watered down; federal agencies will only evaluate measures to lessen project impacts if such actions are deemed technically and economically feasible based on the agency's assessment of property value.
| Regulatory Feature | Previous Standard (Since 1974) | Proposed Rule Changes |
|---|---|---|
| Tribal Consultation | Mandatory government-to-government consultation required for culturally significant resources. | Discretionary; eliminates mandatory consultation requirements with Tribal Nations. |
| Public Participation | Required public notification and comment opportunities before project approvals. | Agency discretion to determine if public participation is useful. |
| Definition of Historic Property | Includes archaeological resources, historic districts, and cultural landscapes. | Requires tangible built structures and geographic compactness, excluding broad natural landscapes. |
| Adverse Effect Assessment | Evaluates direct, indirect, visual, atmospheric, and audible impacts. | Removes indirect, cumulative, visual, atmospheric, and audible elements from consideration. |
Redefining Adverse Effects and Economic Pressures
The new regulations also dilute the criteria defining an “Adverse Effect” on historic properties. By removing indirect and cumulative effects—along with visual, atmospheric, and audible elements that preserve the integrity of a site—the changes eliminate protections against external disruptions. Under the new standard, constructing commercial operations, such as a casino or an amusement park near historic landmarks like George Washington’s home in Mount Vernon, Virginia, could proceed without triggering adverse effect penalties.
Agencies will no longer be mandated to avoid or minimize adverse impacts. Instead, documentation showing that other economic considerations outweigh historic preservation will suffice for projects to proceed.
Proponents of the regulatory changes argue that existing review frameworks create costly delays and complicate economic planning. They contend that narrower definitions offer industry more predictable, streamlined review timelines. Conversely, preservation advocates emphasize that the original framework was designed precisely to balance necessary economic development with the preservation of America’s shared heritage against unmitigated industrial expansion.
Contraindications & When to Consult a Doctor
Path Forward and Review Timeline
The proposed regulations are currently undergoing administrative review within the Office of Information and Regulatory Affairs (OIRA), housed in the White House Office of Management and Budget.
Public engagement and direct communication with congressional representatives remain avenues for communities and historians seeking to contest the narrowing of federal heritage protections. Without intervention, critics warn that the changes will permanently reshape the preservation landscape, prioritizing short-term industrial convenience over centuries of shared history.
