Federal preservation rules are facing a significant rewrite after the Advisory Council on Historic Preservation advanced a proposed rule in July that changes how Section 106 of the National Historic Preservation Act is implemented. The draft regulation would alter key definitions and procedures that govern federal review of projects that may affect properties listed in—or eligible for listing in—the National Register of Historic Places.
The current Section 106 framework requires federal agencies to identify historic and cultural properties, assess impacts, and consult with affected communities, including Tribal Nations, on a government-to-government basis where appropriate. Under the proposal, agencies would gain discretion over whether to notify the public or solicit comment and could determine when consultation is required. Agencies would prepare a Section 106 report and circulate it for comment, but they would no longer be obliged to respond to or incorporate consulting parties’ feedback before issuing final decisions.
The draft also narrows what qualifies as a “historic property,” requiring that a place include tangible human improvements and be geographically compact. This change would exclude many cultural landscapes, battlefields, and archaeological sites from review, with examples cited by preservation advocates including Gettysburg, Little Bighorn, Devil’s Tower, the Black Hills, petroglyphs at Chaco Canyon, and large natural sites such as the Grand Canyon. The rule further removes indirect and cumulative impacts and sensory elements—visual, atmospheric or audible effects—from the definition of an “Adverse Effect,” reducing the scope of what federal reviewers must consider when evaluating projects.
The proposal also changes mitigation and avoidance obligations by making mitigation contingent on whether measures are deemed “technically and economically feasible,” and it allows agencies to proceed when “other considerations outweigh” preservation concerns. Supporters argue the revisions would speed project reviews and provide predictability; critics say they would undercut protections built over decades and risk erasing Indigenous and archaeological heritage. The rule is currently under review at the Office of Information and Regulatory Affairs, and observers note the potential for an accelerated process that could limit public input as the changes advance.
