Threats to Section 106
From Jeffrey Emidy, Rhode Island State Historic Preservation Officer (August 2026)
On July 24, the Advisory Council on Historic Preservation issued revised regulations for Section 106 of the National Historic Preservation Act (NHPA) for review. These revisions, if enacted, would have significant detrimental effects on historic preservation in the United States.
Briefly, Section 106 of the NHPA (now in Title 54 U.S.C. § 306108) is the part of the Act that instructs the heads of federal agencies to take into account the effect of any of their undertakings on any historic property. In practice here in Rhode Island, that means that the State Historic Preservation Office (SHPO) reviews over 1,000 federal projects annually to ensure that historic properties are protected. From cell phone antennas to highways, dams to lighthouses, the staff of the Rhode Island Historical Preservation and Heritage Commission (our State Historic Preservation Office) has an opportunity to consult and comment on projects across the state.
The regulations that implement Section 106 describe a process of consultation between federal agencies and SHPOs, Tribal Historic Preservation Offices, municipal government, and the public. The process includes identifying historic properties that may be affected by a project, assessing and mitigating possible impacts, and suggesting alternatives to avoid adverse impacts. All of the parties mentioned above can take part in this consultation process.
In most cases, the Section 106 process is not complicated. The vast majority of federal projects that occur in Rhode Island do not impact historic properties. In instances where there are impacts, the consulting parties are often successful in avoiding or minimizing the impacts through project redesigns. In cases where the impacts are adverse and unavoidable, we often stipulate mitigation to document the historic property for posterity and/or to provide educational material, like interpretive panels to convey and contextualize the history of the site.
The revisions to the Section 106 regulations proposed by the ACHP would be catastrophic. The most egregious are the revisions that would reduce the types of properties considered to be historic, exclude some types of impacts from consideration, virtually eliminate the opportunities for municipalities and the public to participate in the process, reduce the effectiveness of SHPO and THPO input, and remove any obligation to avoid or minimize impacts to historic properties. Preservation groups across the nation are, without exception, opposed to the revisions.
The websites linked here dissect the changes, give examples, and suggest ways to join the opposition. In particular, the National Trust for Historic Preservation has an excellent page that explains what is happening in more detail, tracks the process, and calls for action. If you only have time for one link, please visit that one.
Advocacy Information & Resources
National Alliance of Preservation Commissions
National Association of Tribal Historic Preservation Officers
National Conference of State Historic Preservation Officers
News Coverage
"Trump's Latest Plan to Sell Your History Out from Under You," The New Republic
"Trump Admin Seeking to Rewrite Historic Preservation Rules to Make Way for Pet Projects," CNN
FAQ's via NCSHPO
The National Conference of State Historic Preservation Officers (NCSHPO) has provided FAQ's, in addition to their 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.
The National Trust for Historic Preservation is urging action -- in recognition and celebration of the nation’s 250 years, they have set an ambitious goal of sending 250,000 letters to our elected officials to protest these changes to Section 106. Read more and submit your letter here.
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