The Advisory Council on Historic Preservation voted on July 24, 2026, to advance a Notice of Proposed Rulemaking to amend key Section 106 regulations under the National Historic Preservation Act.
The proposed rulemaking has since been submitted to the White House Office of Management and Budget and is currently awaiting review before it can be published in the Federal Register.
Although the formal notice has not been publicly released, a draft sent to ACHP members was leaked to the press in late July 2026, offering an early look at the sweeping changes under consideration.
If the final rule mirrors the leaked draft, the changes would significantly streamline the Section 106 consultation process for energy, mining, and infrastructure projects on federal lands or involving federal environmental permits.
Section 106 of the National Historic Preservation Act requires federal agencies to evaluate project impacts on historic properties, including cultural and Tribal resources, and consult with State Historic Preservation Offices, Tribes, and other interested parties.
For many large-scale energy and infrastructure projects, this consultation process has long been identified as a major source of delay within the broader federal permitting framework.
The ACHP, an independent federal agency with 24 members drawn from presidential appointees and officeholders such as the Secretary of the Interior, oversees the Section 106 process and issues the implementing regulations that guide federal agencies.
Drawing on the Supreme Court’s 2025 ruling in Seven County Infrastructure Coalition v. Eagle County, the draft proposed rule frames the changes as a “course correction” and emphasises the National Historic Preservation Act as a procedural statute rather than a substantive one.
Among the most significant proposed changes, the draft would redefine “historic property” to require tangible human improvements and geographic compactness, explicitly excluding unimproved natural features such as mountains, valleys, bodies of water, or landscapes.
The draft would also revise the criteria for determining an “adverse effect,” removing references to indirect and cumulative effects and narrowing the standard to “only those reasonably foreseeable effects that have a reasonably close causal relationship to the undertaking.”
The proposal would further limit the Area of Potential Effect by redefining it as “the geographic area or areas within which an undertaking causes direct material alterations to historic properties,” substantially narrowing the geographic scope of reviews.
Under the draft changes, public comment would become an optional rather than mandatory component of the Section 106 process, a shift that critics are expected to challenge as undermining community and Tribal participation.
The draft would also allow agencies to finalise decisions unilaterally through a Memorandum of Decision, removing the current requirement for State Historic Preservation Office sign-off before a project can proceed.
Consulting parties and Tribes would retain the ability to comment on a Memorandum of Decision, but their agreement would no longer be required for an agency to move forward with an undertaking.
The proposal also encourages the use of procedures similar to categorical exclusions under the National Environmental Policy Act, exempting certain activities from the Section 106 process entirely where federal agencies have determined environmental effects are minimal.
Once OMB approves the notice for publication, a public comment period will follow, with a final rule anticipated sometime in 2027 if the rulemaking proceeds on schedule.
The proposed rule is widely expected to prove controversial and to face legal challenges from Tribal nations, preservation groups, and other stakeholders who argue the changes erode longstanding consultation protections.
Project developers and federal agencies, by contrast, are likely to welcome provisions that increase efficiency and grant agencies greater unilateral authority over the historic review process.
Affected stakeholders are being advised to monitor the formal rulemaking process closely and to submit comments during the public participation period once the notice is officially published.