07/21/2026
For those of you in historic preservation, heads up. Final voting in Congress apparently is this Friday, July 24. And 30 day comment period.
From Historic preservation professionals group on FB:
The ACHP is moving toward the most consequential rewrite of the Section 106 regulations since 1986, and the comment window, when it opens, is expected to be just 30 days. I am not speaking hyperbolically when I say that this will gut the NHPA.
Based on the ACHP's announced review and reporting on the draft under consideration, the proposal would restructure the 106 process itself:
• SHPO/THPO concurrence on eligibility is gone. The consultation model is replaced by an agency-written "Section 106 Report." Agencies would determine what's historic, what's affected, and what's adequate mitigation, then circulate their conclusions for comment.
• "Historic property" would be redefined to require tangible built improvements and geographic compactness—expressly excluding landscapes, ethnographic landscapes, and natural features. Entire categories of Traditional Cultural Properties would fall outside review, no matter their National Register eligibility.
• Setting, visual, atmospheric, and audible effects would no longer count as adverse effects. If a project doesn't physically touch the resource, the surrounding context that makes it eligible wouldn't matter.
• Avoidance disappears as the priority. "Avoid, minimize, mitigate" becomes "address" and agencies could simply document that other considerations outweigh preservation and move on, via a unilateral Memorandum of Decision instead of a negotiated MOA.
• Public participation becomes optional, at the agency's "exclusive discretion." The category of consulting party that lets preservation nonprofits and concerned citizens at the table would be eliminated.
• Whole classes of federal actions—delegated programs, block-granted funds, "minimal" federal involvement—would no longer be considered undertakings at all.
Section 106 has produced sixty years of negotiated outcomes, documentation, and seats at the table for states, tribes, local governments, and the public. That table is being removed.
Cultural Heritage Partners is a private law firm committed to the principle that cultural heritage is a human right.
