Threats to Section 106

From the National Trust of Historic Preservation (August 2026)

The Advisory Council on Historic Preservation (ACHP) is advancing a sweeping and damaging proposal to rewrite the regulations for Section 106 of the National Historic Preservation Act (NHPA). If implemented, these new rules would dramatically diminish the effectiveness of the NHPA and the current legal protections for historic and cultural places.

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.

These new regulations will lead to more delays and more litigation as federal agencies and applicants try to navigate compliance without the well-known and well-used consultation process, which often leads to negotiated win-win outcomes. The preservation community and our partners across the country are mobilizing to fight this harmful proposal.

The National Conference of State Historic Preservation Officers (NCSHPO) has provided FAQ's and an up-to-date News page. 

What about a lawsuit to stop it?
In order to file a lawsuit there must be a final agency action – so until a final rule is published in the Federal Register, a lawsuit would not be “ripe.”

Should we each write our objections to the ACHP?
At the moment, the Council is soliciting comments from its own members, not the public. While you are free to comment anyway, the impact of those comments is unpredictable. They could certainly influence in a positive way – but they could also be ignored or agitate.

Can Congress intervene?
The short answer is yes. As you have seen, some legislators have released statements in opposition. However, those same legislators have stated their belief that Section 106 does need change. By asking legislators to act, we could be inviting legislative changes to the NHPA rather than regulatory ones. Again, that can be good or bad. A legislator could also try to introduce a bill that would halt the process, alter the council’s authorities or other actions. As most of us know, getting legislation successfully passedhas been difficult - which is why we are seeing so many political differences being approached through regulation rather than law.

What Can We Do?
Tell your Governor’s Office: If you are in a position to do so and you have the relationship in place, please brief your Governor’s Office about what is happening. The key point to raise is that the proposed change would eliminate required state and local input into federal decision-making. Acknowledge that there things we can do to make the process better – but a unilateral rewrite of the regulations in this manner is drastic and concerning.

• Tell your CLGs: Alert them that the proposed changes would eliminate local governments from the Section 106 process.
• Tell your Legislators: Let them know that the ACHP is considering regulation changes that, if enacted, violate the entire congressional intent behind the National Historic Preservation Act.

The Bottom Line
Despite the many uncertainties at this time, this is probably the biggest threat to historic preservation we have seen in years. NCSHPO has spent the past several months surveying its members and preparing a set of recommendations for improving the Section 106 process. We acknowledge that there are issues that need to be addressed – and our position has been that thoughtful and careful changes can both preserve our historic places and allow for easier project delivery. This current situation, however, is a blunt instrument that would completely gut the entire Section 106 process. It violates not only the intent of the National Historic Preservation Act, but it would return us to a world where federal agencies alone can decide what is historic, what can and should be saved, and what can be irreversibly lost. These conditions are precisely why the NHPA was adopted in 1966 to begin with.