A proposed overhaul of the regulations implementing Section 106 of the National Historic Preservation Act (NHPA) could fundamentally change who has a voice when federal decisions affect historic places, archaeological sites, sacred places, and cultural landscapes.
On July 24, the Advisory Council on Historic Preservation (ACHP) voted to advance a draft Notice of Proposed Rulemaking. The draft is now undergoing interagency review by the White House Office of Information and Regulatory Affairs. As of August 17, it has not been published in the Federal Register, and the formal public-comment period has not begun.
That does not mean the public should wait. Organizations are mobilizing now, Congress is considering related changes to federal permitting law, and the time to understand what is at stake is already here.
WHAT SECTION 106 DOES
Section 106 may sound like a technical federal process, but its purpose is straightforward: before a federal agency carries out, funds, licenses, permits, or approves an undertaking that may affect historic properties, the agency must consider those effects and give the ACHP a reasonable opportunity to comment.
The process brings federal agencies into consultation with Tribal Nations, State and Tribal Historic Preservation Officers, local governments, applicants, preservation professionals, and other people and communities with knowledge of or a connection to affected places. It helps identify historic properties early and creates opportunities to avoid, minimize, or mitigate harm before decisions become irreversible.
Section 106 does not stop development or dictate a particular outcome. It supports informed decision-making—and good consultation can identify problems early, reduce conflict, and help projects move forward more responsibly.
WHY THE PROPOSED REWRITE IS CONCERNING
The draft approved by the ACHP is not a modest update. Legal analyses by Cultural Heritage Partners War Room for Threats to Section 106 – Cultural Heritage Partners, PLLC and statements from Tribal, state, and national preservation leaders warn that it would:
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Make public participation discretionary. Federal agencies would gain broad authority to decide whether public involvement is useful, leaving communities with fewer guaranteed opportunities to participate.
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Weaken consultation requirements. The draft would remove or narrow existing consultation requirements, redefine what consultation means, and reduce the formal roles of Tribal Nations, states, and local governments.
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Narrow what receives protection. Proposed definitions could exclude noncompact landscapes and natural features, including places of traditional religious and cultural importance that may not center on a building or other constructed feature.
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Limit which harms must be considered. The proposal would reduce consideration of indirect and cumulative effects and eliminate longstanding requirements to explore avoidance and minimization before turning to mitigation.
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Concentrate authority within federal agencies. Agencies would receive greater discretion over participation, timelines, identification efforts, and decisions about how—or whether—to address harm.
WHY THIS MATTERS IN THE SOUTHWEST
Here in the Southwest, culturally important places include the Greater Chaco Landscape and the Mesa Verde region, along with thousands of ancestral villages, archaeological sites, sacred places, gathering areas, and traditional cultural landscapes extending far beyond park and monument boundaries.
Many of these places are only identifiable by descendant Tribes and communities. Their importance may be understood most fully through Indigenous knowledge, oral traditions, and living cultural relationships. Meaningful Tribal consultation is therefore not an optional courtesy. It is essential to responsible decision-making and to the federal government’s government-to-government relationships and trust responsibilities.
At Crow Canyon, we know that archaeology is not simply about objects or the distant past. It is about people, relationships, place, and the knowledge communities carry forward. Stewardship is strongest when it is collaborative, informed, and inclusive of those most closely connected to these landscapes.
THE THREAT EXTENDS BEYOND ONE PROPOSED RULE
Cultural Heritage Partners and the emerging National Coalition to Protect Section 106 identify three simultaneous challenges:
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Regulatory: the ACHP proposal to rewrite the regulations implementing Section 106.
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Legislative: possible changes to the NHPA through congressional permitting-reform negotiations, before a comprehensive, evidence-based review of whether Section 106 causes the delays attributed to it.
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Executive: efforts to compress or avoid established review processes, including expanded use of emergency procedures.
Together, these developments could reshape federal historic-preservation review for years to come. Any effort to improve efficiency should strengthen early coordination, agency capacity, predictability, and meaningful consultation—not trade away transparency, Tribal participation, or public accountability.
WHAT YOU CAN DO NOW
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Organizations: join the open letter to Congress by Friday, August 21, at 5:00 p.m. ET. Cultural Heritage Partners is gathering a broad coalition of national, state, local, Tribal, nonprofit, public, and private organizations. Authorized representatives may contact Greg Werkheiser at greg@culturalheritagepartners.com with the organization’s name and confirmation of authorization to sign. Additional organizations may join after August 21, but this is the first deadline for the letter’s distribution to Congress and the press.
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Contact your members of Congress now. Ask them to oppose regulatory or statutory changes that weaken Section 106 and to support improvements that preserve meaningful Tribal consultation, public participation, transparency, and accountability.
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Prepare to comment—but do not submit yet. The official public-comment period will begin only after the proposed rule is published in the Federal Register. Effective comments should cite specific provisions, provide evidence and examples, explain likely effects, and recommend workable alternatives.
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Learn and share. Use reliable resources to help colleagues, partners, and community members understand why Section 106 matters and why participation before irreversible decisions is so important.
The principle at the heart of Section 106 is simple: before the federal government makes decisions that could permanently alter places of historic, cultural, and spiritual importance, it should understand what may be lost and listen to the people who know those places best.
The places we inherit today become the legacy we leave to future generations. Ensuring that communities retain a meaningful voice in their stewardship is a responsibility we all share.