ACHP Proposes to Eliminate Protections for Historic and Cultural Properties

7/23/2026

WASHINGTON, D.C.  –  The Advisory Council on Historic Preservation (ACHP) is planning significant revisions to the “Section 106 Process” that would eliminate protections for historic and cultural properties.  The proposed changes would eliminate tribal consultation requirements and reduce tribal involvement in the Section 106 Process.  The changes would also weaken requirements for identification and avoidance of impacts to historic and cultural properties, and would eliminate protections for cultural landscapes.

The ACHP is currently voting on whether to proceed with the proposed changes to the Section 106 Process.  If approved, the proposed revisions would be published in the Federal Register for review and comment.  Indian tribes should be able to seek Tribal Consultation—possibly before publication in the Federal Register.  The proposed changes have not yet been formally released by the ACHP, but pre-publication documents are available here.  

The Section 106 Process has been in effect for 60 years and is set out in the regulations at 36 C.F.R. Part 800.  The regulations implement Section 106 of the National Historic Preservation Act.  The proposed changes would fundamentally alter how federal agencies:  determine whether Section 106 applies to an undertaking; evaluate historic properties; consult with tribes; and complete federal historic preservation reviews.  

Proposed changes are extensive, some of which include:

• Substantially eliminating the consultation process throughout the Section 106 Process. Numerous provisions would be eliminated that require agencies to provide Indian tribes with a meaningful opportunity to identify concerns, share traditional knowledge, and discuss religious and cultural significance.

• Expanding agency official decision-making authority by creating a new Memorandum of Decision process.  Existing provisions requiring agencies to address disagreements regarding findings, documentation, or determinations are largely eliminated, and agencies would no longer be required to provide formal responses before moving forward. 

• Reducing mandatory public participation requirements.  The proposed changes provide that agencies may, rather than must, invite public participation when they determine public participation is appropriate.

• Balancing historic preservation against other federal priorities, including economic development, infrastructure needs, and other governmental objectives.  The proposed changes expressly state that the Section 106 Process is procedural and does not impose any substantive historic preservation outcomes or obligations. 

• Removing existing provisions requiring consultation when developing emergency procedures.  Instead, agencies would have greater flexibility to proceed when responding to declared disasters or emergencies.

• Revising regulatory definitions to narrow the scope of the Section 106 Process.

Indian tribes are encouraged to:  participate in a July 28, 2026 webinar being hosted by the National Association of Tribal Historic Preservation Officers (register here); seek Tribal Consultation with the ACHP; contact their Congressional Delegation about the impact of the proposed Section 106 changes; and monitor the Federal Register for the opportunity to provide formal comments.

Skenandore Wilson LLP is dedicated to the representation of Tribal Nations, Tribal entities, and individual Tribal members throughout Indian Country.  Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our Tribal clients.  To learn more about how we can assist you, contact us at info@skenandorewilson.com or 608-608-1210.