What is Section 106 of the National Historic Preservation Act?

Section 106 of the National Historic Preservation Act of 1966 is one of the most important legal mechanisms protecting America's historic places. It's a big part of how we as a nation preserve the irreplaceable sites where our history happened.

Section 106 ensures that when the federal government does something that would impact a historic site (construct something, approve permits for construction, lease public property, etc.), steps must “take into account” the effects of the project. This legal protection came about during the 1960s, amid a boom in urban renewal projects, highway construction, and other undertakings that resulted in the widespread demolition of historic resources across America's cities.

Section 106 essentially requires the federal government to determine if historic places would be harmed before initiating a new project, and to consider ways to either avoid, minimize or mitigate that damage. It also mandates that the federal government provide state, local, and Tribal governments, and members of the public an opportunity to express their views on these matters, through a consultation process.

Proposals that undergo Section 106 review and consultation tend to result in final projects that are less harmful, and more successful generally, thanks to these commonsense requirements. It's similar to how writing tends to be improved with the outside perspective of an editor.

What is the National Historic Preservation Act (NHPA)?

The National Historic Preservation Act (NHPA), signed into law by President Lyndon Johnson on October 15, 1966, is the nation's foundational law on historic preservation. The act established a federal-state and federal-tribal preservation partnership, the Advisory Council on Historic Preservation, and authorized the expansion of the National Register of Historic Places. It also required the appointment of qualified State Historic Preservation Officers (SHPOs), charged federal agencies with the stewardship of historic resources, and established the role of Certified Local Governments in preservation efforts. The NHPA also recognized Tribal sovereignty by requiring federal agencies to engage in government-to-government consultation with tribes.

What is the Advisory Council on Historic Preservation?

The Advisory Council on Historic Preservation (ACHP) was designed to be an independent federal agency that advises Congress and the White House on issues of preservation. They oversee the Section 106 review process and step in when there is conflict or when otherwise deemed necessary. Based in Washington, D.C., the Council’s employees carry out historic preservation case reviews, provide training in historic preservation law and policy, conduct outreach to the public on the importance of historic sites and community preservation, and more.

Who has a seat on the Advisory Council on Historic Preservation?

The Advisory Council on Historic Preservation (ACHP) has 24 designated members. The President appoints/designates four individual members of the public, including a full-time chairman, four historic preservation experts, one member of a Tribal or Native Hawaiian organization, one governor, one mayor, the Secretary of the Interior, the Architect of the Capitol, the Secretary of Agriculture, and seven additional federal agency heads. The rest of the Council is comprised of three national preservation organizations: the National Trust for Historic Preservation, the National Conference of State Historic Preservation Officers, and the National Association of Tribal Historic Preservation Officers.

Does the National Trust for Historic Preservation have a seat on Advisory Council on Historic Preservation?

Yes, the Chair of the National Trust is designated by Congress as a voting member of the Advisory Council on Historic Preservation (ACHP). This role is crucial in advocating for national preservation initiatives and policies.

What is the difference between ACHP employees and ACHP members? Do the employees have voting privileges?

What kinds of projects require Section 106 review?

According to the Advisory Council on Historic Preservation (ACHP), a wide variety of federal projects, including construction, rehabilitation, demolition, and conveyance of federal property, as well as non-federal projects that require the issuance of federal licenses or permits, or loans and grants that might affect historic properties, all are subject to Section 106 review. Properties listed on or eligible for listing on the National Register of Historic Places, a list maintained by the National Park Service, must be considered under the requirements of Section 106. The National Register includes various types of properties, such as buildings, structures, objects, districts, cultural landscapes, archaeological sites, and sites of national, state, or local importance.

What consulting parties participate in Section 106?

Federal agencies (responsible for initiation), Advisory Council on Historic Preservation (optional), State Historic Preservation Offices (SHPO), Tribal Historic Preservation Offices (THPOs) or federally recognized tribes, local governments, and other stakeholders with an interest in the project, such as historic preservation organizations, adjacent property owners, etc. (For example, the National Trust is often a consulting party).

What is the process for making changes to Section 106 regulations?

The Administrative Procedure Act names the following rulemaking requirements:

1. Notices of proposed rulemaking in the Federal Register with the required contents.
2. Opportunity for interested persons to participate in the rule making through submission of written data, views, or arguments.
3. Final rule publication in the Federal Register, including a concise general statement of their basis and purpose.
4. The required 30-day notice before going into effect.

​On July 17, the Advisory Council on Historic Preservation​ proposed sweeping changes to Section 106 regulations. Did the ACHP follow the above-mentioned process?

No. The Advisory Council on Historic Preservation (ACHP) Vice Chairman first announced the intent to revisit Section 106 regulations in January, emphasizing collaboration with ACHP council members and the broader preservation community, while ensuring any changes remain consistent with the National Historic Preservation Act. The ACHP then announced plans for a Section 106 Working Group and invited members to participate and submit preliminary recommendations. The ACHP adopted a resolution directing staff to develop a regulatory timeline within 30 days and continue accepting member recommendations through August 3.

In early July, Council members were informed that the regulatory timeline had been prepared and was awaiting release. Instead of receiving the anticipated timeline, ACHP members then received a nearly complete draft Notice of Proposed Rulemaking via email and were asked to vote within one week by email. On July 24, a majority of ACHP members voted to advance the proposed revisions to the regulations, with 16 voting in favor, 5 opposed, and 2 abstentions.

What has Advisory Council on Historic Preservation​ (ACHP) advised will be the timeline for this rulemaking?

• ACHP Vote on 7/24/2026 – done
• ACHP submits to Office of Information and Regulatory Affairs (OIRA) – happening now
• OIRA reviews – timing depends on OIRA review and requests for consultation
• ACHP resolves OIRA/inter-agency review comments
• ACHP publishes Notice of Proposed Rulemaking (NPRM) in the Federal Register for public comment, likely to last for 30 days
• Tribal consultation – including stakeholder meetings
• ACHP reviews input and comments and receives ACHP member input
• ACHP votes on final rule
• Resubmitted for OIRA review
• Final rule published in Federal Register, effective 30 days later

What will the proposed changes to Section 106 do?

The Advisory Council on Historic Preservation’s proposed changes to Section 106 threaten the history of our nation and the fabric of our society—this is an unprecedented and deliberate attack on our civic and cultural inheritance and the work many of you do every day. The proposed changes will eviscerate the process that allows us to weigh in on federal agency actions that threaten our shared civic and cultural heritage.

If the revisions are implemented, federal agencies would no longer be required to try to avoid or minimize damage to America’s historic architecture, neighborhoods, and landscapes. State and local governments would 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 would 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 obligated to consider any adverse effects to significant places such as the Grand Canyon. In addition, adverse effects that don’t involve physical damage or destruction would no longer be considered – such as adverse visual and noise effects, regardless of how extreme they might be. Nor would indirect impacts be considered – such as predictable sprawl development adjacent to a new road.

Are the proposed Section 106 changes to statutory or regulatory requirements?

The proposed changes are regulatory. The National Historic Preservation Act (NHPA) is the federal law enacted by Congress, and Section 106 is a provision within that law that requires federal agencies to consider the effects of their undertakings on historic properties. The statutory requirement is relatively brief, but the regulatory procedures for carrying out Section 106 are detailed and extensive. (36 C.F.R. Part 800.) The current proposal would amend those regulations, changing how Section 106 is implemented, but not the underlying statutory requirements enacted by Congress.

Is the Advisory Council on Historic Preservation​ (ACHP) required to obtain congressional permission to enact the proposed changes to Section 106?

No, because the changes to Section 106 are regulatory rather than statutory, they do not require approval by Congress. The Advisory Council on Historic Preservation has the authority under the National Historic Preservation Act to issue and amend the regulations implementing Section 106 through the federal rulemaking process.

How does Section 106 protect and enhance economic opportunities for communities?

The Section 106 process helps to protect historic resources from harmful development, so that the long-term economic growth of communities nationwide can be more closely tied to their local identities and histories. The preservation of historic properties leads to reuse and reactivation, which in turn can attract and enhance tourism and community prosperity.

Does the process of a Section 106 review negatively impact the outcomes of a project?

Section 106 facilitates better decisions through consultation and collaboration.

Using data from SHPOs/NCSHPO and ACHP's own reporting: the vast majority of the roughly 100,000 federal undertakings reviewed annually result in no adverse effect finding, and most reviews resolve without controversy.

Are there any costs associated with a Section 106 review?

While there are cumulative costs associated with the consultation process (meetings, surveys, and research), removing the negotiation process with agencies and applicants will likely result in more litigation and more project delays, ultimately increasing the costs.

Have there been changes made to Section 106 regulations before? What were the changes?

Yes, but prior amendments have been relatively narrow. In 2004, the Advisory Council on Historic Preservation made a targeted set of revisions that responded to court decisions which held that the ACHP could not directly veto Federal agency determinations regarding whether or not undertakings would adversely affect historic properties, and that Section 106 does not apply to undertakings that are merely subject to State or local regulation pursuant to a delegation of authority from a Federal agency.

If a group is negotiating a Section 106 agreement, are they currently covered by old or proposed regulations? If there is a lawsuit, which regulations will apply as the case plays out?

The current regulations are still in place. If new regulations are approved, possible litigation could delay the enactment of the new rules until a court decision is made.

How will the proposed changes to Section 106 impact jobs?

Section 106 is one of the biggest drivers of employment in the field of preservation because it creates a recurring need for professionals to identify and mitigate effects on historic properties. With the scope of projects reviewed under Section 106 narrowed, there will be less work for historians, archaeologists, and other cultural resource professionals. The specific rule changes particularly endanger work for Tribal consultation specialists.

What is the difference between National Environmental Policy Act (NEPA) and Section 106?

Section 106 and National Environmental Policy Act (NEPA) are two separate laws that require federal agencies to consider effects on historic properties and the human environment before making decisions. However, Section 106 and NEPA have very different parameters for what type of actions may trigger review and what type of impacts and resources are considered in each review.

What can I do to protect the historic places I care about?

It’s important to make your voice heard. A good first step is to contact your elected officials to let them know how these revisions to Section 106 regulations will impact you on a local and personal level. Continue to share your perspective when the Advisory Council on Historic Preservation releases the proposed regulations for public comment.

When should members of the public send letters about Section 106 to their governor and representatives?

The National Trust will share more information about timing as it becomes available. In the meantime, we recommend signing up for our action alerts and emails to stay informed on the latest developments.