The National Historic Preservation Act of 1966 established federal policy on historic preservation that provided a public-private partnership to carry out the policy. The Act, under Section 106, specifies that the federal government is to partner with numerous stakeholders on measures and programs to foster preservation of historic properties on federal and nonfederal lands.
For decades, Section 106 has ensured that communities have a voice when federal actions may affect historic and cultural resources. The provisions and processes have proved invaluable to the preservation movement and have enriched the lives of multitudes. I refrain from speculating on the intent of the revisions to weaken preservation policies but one has only to scan the current news including the seemingly insatiable appetite for data centers that I wrote about and shared in the Spy six years ago.
Section 106 has provided a critical framework for ensuring that the effects of federally funded, licensed, or approved projects on historic properties are considered before decisions are finalized. Just as importantly, the process provides opportunities for involvement by stakeholders such as State Historic Preservation Offices, Tribal nations, local governments including HDC’s, preservation organizations, property owners, and the public to participate when federal actions may affect historic resources.
The strength of Section 106 is that it serves to empower all stakeholders to have a meaningful voice in the review and decision-making process to safeguard historic assets. It is not about stopping progress, but rather, facilitates better decisions through consultations and collaborations to improve and enhance the outcome.
In July, the Advisory Council on Historic Preservation voted to advance sweeping proposed changes to the regulations implementing Section 106. The Council is an independent federal agency that advises the President and Congress. If adopted, these changes could significantly weaken protections for historic and cultural resources locally, statewide and across the country.
The proposed revisions would shift the consultation process toward greater unilateral federal agency control, limiting the ability of the stakeholders and communities to advocate for their historic resources. Among the proposed changes, the proposal would:
- Narrow the definition of a federal “undertaking,” resulting in fewer projects receiving Section 106 review.
- Redefine what constitutes a “historic property,” potentially removing cultural landscapes, sacred sites, burial grounds, and more from consideration.
- Reduce consultation requirements and opportunities for meaningful public participation.
- Remove requirements for federal agencies to avoid, minimize, or mitigate adverse effects to historic resources.
Although these changes are intended to accelerate federal reviews, they could instead create greater uncertainty and ultimately lead to more delays and litigation. Additionally, the revisions would effectively jeopardize protection of existing resources and prevent the inclusion of meaningful future ones on the National Register.
In response to the proposed changes, Brent Leggs, President and CEO of the National Trust for Historic Preservation recently commented:
“Let me be clear, the Advisory Council on Historic Preservation’s proposed changes to Section 106 threatens the history of our nation and the fabric of our society. This is an unprecedented and deliberate
attack on our civic and cultural inheritances. The proposed changes will eviscerate the process that allows us to weigh in on our federal agency’s actions that threaten our shared civic and cultural heritage. These changes matter because our historic places matter.”
Essentially, according to the National Trust, three major themes run through the bullet points noted above.
- Consolidation of Agency Control – consultation becomes optional and it becomes agency directed instead of the open and shared process we currently enjoy.
- Reduces Application of Section 106 – fewer projects will be reviewed.
- Reduces Scope of Consideration – reduction of what counts as historically relevant and what are considered adverse impacts.
Drilling down to reveal some details of the themes, the ramifications were found to be perilous.
- Public participation becomes discretionary with the public losing their seat at the table.
- Field investigations are limited to what is considered reasonable including the cost and time to do so. Deep and meaningful factors will not be known before they are lost forever.
- Agencies are no longer required to consider or minimize adverse effects or even consider alternatives, allowing other considerations to outweigh preservation.
- Mitigation is limited to “technically and economically feasible” and cost alone can justify weaker or no mitigation measures.
- Consideration of indirect or cumulative effects is removed completely.
- Also removed from consideration are the visual, atmospheric or audible elements that would diminish a property’s integrity or how it is used.
- There will be no consideration of traditional cultural places, sacred sites, etc. that never had a single building on the land to begin with.
- Limiting historic sites to what is determined to be “geographically compact”.
- A Section 106 review can be bypassed due to a disaster or an emergency declaration by the President.
- Tribal nations are dramatically harmed by the proposed revisions.
Currently, the proposed changes have been submitted to the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) for review. Following that process, the proposed revisions are expected to be published in the Federal Register, opening a formal public comment period.
Now is the time for the preservation community and like-minded to prepare and make its voice heard to help ensure that this important preservation tool remains effective and strong.
To this end, I encourage you to contact your U.S. Representative and Senators and ask them to sign the congressional letter opposing the proposed Section 106 changes. Additionally, visit the National Trust for Historic Preservation’s YouTube page to review the excellent three-part video series on the Section 106 revisions – July 30th, August 12th and 24th. The last video focuses on advocacy options and opportunities for individuals and organizations. The clarion call has been sounded.
As Brent Leggs pointedly shared, “These changes matter because our historic places matter.” I trust they matter to you as well.
Thank you for your support.
Thom Kocubinski
Preservation Architect
Chestertown
