What is Section 106?
Section 106 is one of the few places in federal law where communities get a chance to influence what happens to the places that hold their history and tell their stories. It does not guarantee that a building, landscape, or cultural site will be saved. What it guarantees is something more basic and powerful: before federal money, permits, or approvals move forward, the government must take into account the project’s effects on historic properties and consult with the people who will live with the consequences.
That is why the Paul Rudolph Institute and preservation advocates are against the Advisory Council on Historic Preservation’s proposal to rewrite the regulations that implement Section 106 (36 CFR Part 800). This is not a routine effort to streamline some bureaucratic process. It is a sweeping rewrite that would dramatically diminish the effectiveness of the National Historic Preservation Act’s core protection for historic and cultural places.
When you weaken this process, you don’t get “efficiency.” You get irreversible loss - loss of real protections for landmark properties today, and loss of a procedure that preserves the landmarks of tomorrow.
What does the Section 106 process do?
The Section 106 process was created to manage how the government recognizes and deals with historic properties.
“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, empowering state and local governments and Tribal communities to have a voice in the process, and often improving the project and enhancing the outcome.”
The current Section 106 framework works because it is familiar and built around consultation that produces negotiated outcomes. It creates a structured process where agencies must identify historic properties, assess whether there will be adverse effects, and then work through avoidance, minimization, or mitigation in a way that is transparent and documented. The process is not perfect, but it works. It is a pathway for resolving conflict before it moves into litigation.
The ACHP’s proposed Section 106 rewrite threatens that process.
Section 106 involves a conversation with consequences. It is where communities explain why a place matters, where Tribes raise concerns about sacred sites, and where state and local preservation offices bring expertise that agencies and applicants may not have. It is also where practical solutions are often found - design adjustments, phasing, reuse strategies, or changes that allow a project to proceed without erasing what cannot be replaced.
What will change in Section 106
The National Trust has studied the proposed changes and put together the following summary:
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 Tribal communities 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.
These regulations are inconsistent with the National Historic Preservation Act and would violate the Council’s own rules and procedures.
The proposed changes are also internally inconsistent and riddled with errors, likely to cause enormous regulatory confusion and chaos.
Why the proposed changes must not happen
Changes to streamline the Section 106 process will increase delay and litigation rather than reduce it. That may sound counterintuitive until you consider how infrastructure, energy, and development projects actually get approved. The current Section 106 process is understood by agencies and has a known set of expectations for resolving disagreements. A sweeping rewrite will introduce uncertainty. Uncertainty produces disputes. And disputes - especially when communities feel shut out - tend to end up in court. When an understood process is replaced with a confusing one, you don’t reduce risk - you move into litigation.
Another result will be a drift toward mitigation as the default outcome. Documentation of threatened sites can matter, especially when avoidance is not feasible. But if the revised rules make it easier to reach quick resolutions without requiring an analysis of alternatives, mitigation becomes a quick solution and a euphemism for permission to destroy. For example - simply taking a photo of a place before it is destroyed will never substitute for that place.
Section 106 has been one of the few federal processes that invites public comment on impacts to historic places in a way that can actually change outcomes. Changes to public notice and participation will make it harder for the public to engage early enough to matter. When a public notice becomes harder to find, when participation becomes more technical, or when engagement happens later in a project’s timeline, the result is predictable: fewer people show up, fewer concerns are documented, and fewer alternatives are explored. If the public can’t find the process, the public can’t change the outcome.
What you can do Now
Preservation advocates and the Institute are mobilizing because rule changes are approved quietly, only for the consequences show up later - one project at a time.
The National Trust for Historic Preservation has resources on their website here.
Actions they suggest that you can take include:
Invite your elected officials to visit a local historic site that’s important to you and your community. Be prepared to talk about how the place is benefitting the community.
Sign up for newsletters from your U.S. Representative and your U.S. Senators to learn more about what their priorities are, what legislation they’ve sponsored, and if they will be hosting any upcoming town hall discussions.
Take action from home. Use the talking points prepared by the National Trust or your own story to tell your legislators why historic preservation is important to you and your community.
Write to your governor to share how these changes to Section 106 impact historic properties in your location. Learn more here.
Write to your members of Congress and consider contacting the district office during the August recess to make your voice heard. Learn more here.
Get more ideas from watching this webinar - which we attended - hosted by the National Trust, discussing the proposed changes to Section 106.