Attack on Section 106 and Our History

This post concerns recent political attacks on historic preservation and archaeology, the field I work in. The views expressed here are my own.

Historic Preservation, History, and Archaeology Under Attack

On July 24, 2026, the Advisory Council on Historic Preservation (ACHP) voted on sweeping and highly irregular alterations to the regulations known as “Section 106” which govern how the U.S. Federal Government addresses issues of historic preservation impacted by Federal undertakings. As an archaeologist and a professional in Cultural Resource Management, I have been watching this situation unfold for some time, and I can say with a high degree of confidence (call it \(3\sigma\)), that these changes are over-archingly bad, will harm my industry, and the larger construction industry, irreparably damage irreplaceable material history, and generally have none of the dubious “positive” effects that were posited as the reason for these so-called reforms. The good news is that while ACHP voted to advance the rules, they are not yet approved, and there is still time to make the case against them. The proposed rules will be published in the Federal Register, where anyone can submit comments on them, and of course we can also raise these issues with our representatives and senators.

Background

Section 106 takes its name from the section of the National Historic Preservation Act (1966) concerned with the impacts Federal projects may have on historic or archaeological sites listed on, or eligible to be listed on the National Register of Historic Places. The regulations lay out the process Federal agencies must follow to be in compliance with the law, and protect historic and archaeological resources. Over the past 60 years, that process has been refined by agencies, archaeological consulting firms, state historic preservation offices (SHPO), tribal historic preservation officers (THPO), and other stakeholders. Like any continually evolving process, it is not perfect; however, the changes put forward by ACHP would dramatically alter a functioning process, and lead to greater damage to places of historical and cultural importance. Could we improve Section 106? Probably, but this is very much not the way to do so.

Proposed Changes

The proposed changes to the current Section 106 process will dramatically reduce stakeholder involvement, and in many cases neuter public interest in preservation of history and archaeology. Several key industry groups have analyzed available drafts of the changes, including the American Cultural Resources Association (ACRA), and the Society for American Archaeology (SAA). Here are some of the most damaging proposed changes:

Replacing Consultation with “Certification” and Response

Proposed changes would start with a Federal agency producing a “Section 106 Report” certifying that they have considered impacts to historic properties, and determine any mitigation that is needed. This would then be circulated among the parties the agency decides to consult, who would have a narrow window to respond.

The current process involves systematic consultation with interested parties, who may define their own concerns about an undertaking’s impacts – the rule appears to narrow considerations to only what the agency defines.

The current process consults a broad swath of parties interested in preservation, including SHPOs, tribes, and local communities. These stakeholders define their own concerns, and provide meaningful feedback that drives the process to minimize an undertaking’s impact on important historical and cultural sites and areas. The proposed change replaces that with a top-down assessment, limiting stakeholder participation, and implicitly narrowing what is protected by reducing the input of local stakeholders. In addition to reducing protection for historic properties that may not be recognized by a broad, agency-level review, the reduction of local input will inevitably result in projects that do not take local concerns into account.

Sidelining Stakeholder Input

The proposed rule will severely limit inputs for SHPOs, THPOs, tribes, and the public in general. Essentially, it will make these consultations either optional, or “toothless” in that there will be no real way for these stakeholders to object to agency findings that the agency cannot simply ignore.

The current process provides opportunities for SHPOs and THPOs to object to agency’s determining that no historic or archaeological sites will be impacted by an undertaking. It also provides that tribes and Native Hawaiian organizations should be consulted, and provides that the public must be kept informed and allowed to comment.

The new rules would effectively make stakeholder engagement an act of “theater.” It reduces the number of parties to be consulted, and neuters the ability of interested stakeholders who are consulted to actually have any meaningful say in a project. In effect, an agency will now be able to propose a project which would destroy an important historical site, claim no effect, ignore any protests or comments otherwise, and proceed with the project.

Ignoring Indirect Effects

Indirect effects, things like assessing whether an undertaking will impact the viewshed of an historic property, are explicitly removed by the proposed rule change. This also includes removing from consideration any impacts to other features in a property’s setting that contribute to its historic character.

Currently, we consider a number of indirect effects when making assessments of an undertaking’s impact. These include visual, atmospheric, and auditory impacts – e.g. is this new highway running directly by an historic site going to create a noise nuisance to visitors? Is this new cell tower going to mar the backdrop of this historic building that people love to take pictures of?

The proposed rule change eliminates an entire category of impacts from consideration, and may in fact be one of changes that will become most obvious to the public. It will produce obvious negative impacts on historic landscapes and properties. There is no meaningful justification for not considering indirect effects, it is simply a blatant disregard for the past and our heritage.

Reducing Undertakings Requiring Section 106

Along with the wholesale rewrite of the Section 106 process to remove public and stakeholder input, and reduce effects considered, the proposed changes would reduce the scope of the process itself. This includes exempting more types of projects, including projects with an undefined “minimal” amount of Federal funding, and allowing “emergency” projects to skip the process with no definition of emergency, or time window related to said emergency.

The current version of Section 106 captures most projects using Federal monies. This is intentional. Emergency exceptions are provided for “immediate threats to life or property.” And appropriately for a process grounded in NHPA, preservation concerns are the first consideration of the process unless exempted.

The rule changes would allow the Federal government to use almost any excuse to avoid even trying to meet the greatly-reduced Section 106 process that is proposed, and it would bend the consideration of impacts to historic properties and archaeological sites away from the process, prioritizing cost and other factors. A consideration of impacts to our history and culture by its nature should consider those impacts first – other regulations can and do direct agencies to consider cost already; making it a primary factor in evaluation of impacts to heritage simply highlights how these changes are an attack on Section 106, not a serious attempt at reforming these rules for any good reasons.

Other Changes

These are the alterations that jumped out at me the most as an archaeologist. The ACRA and SAA summaries linked above summarize more, and are worth reading, and it will be important to review the finalized proposed rule changes when published in the Federal Register, as they may differ from drafts.

What Can We Do?

Proposed rule changes such as this typically come with several opportunities for public input, including a comment period, direct lobbying, and if the rules are adopted, legal action.

Comment Period

Once the rules are published for comment, I will put a link here. The best approach is to review the published proposal, and provide concrete counterpoints. It will be important to have comments from professionals in the field such as myself, and also from the general public. We all interact with history daily, simply by virtue of living in a place with history. Try to draw on that, and your own experiences to emphasize why you think this rule change is a bad idea. Some professional organizations may put out helpful guidelines for commenting which I will link here as well, as I see them.

Lobbying Elected Officials

Ultimately, NHPA is a product of Congress, and Congress can take proactive steps to cut these changes off at the knees. They probably won’t until the Republican yes-men are neutered, but it won’t hurt to berate your congresspeople about this issue and others in the meantime.

Final Thoughts

This is just one prong of the right wing attack on our collective history and heritage – see the massive downsizing of National Monuments, blatant interference with cultural institutions like the Kennedy Center, and destruction of natural and cultural sites along the U.S.-Mexico border for a few examples. While some of these actions can be pushed back against, the best way ultimately will be to elect a majority of Democrats to one or both houses of Congress in November. Let’s take back momentum and cancel the corruption, for good.

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