Proposed rule change curtails tribal consultation, public comment
The Advisory Council on Historic Preservation, a federal agency whose 24 members include 21 Trump appointees, is moving on an accelerated timeline to rewrite the rules governing how federal agencies evaluate the effects of construction projects on historic properties — a framework that has operated for six decades.
Acting chair Travis Voyles sent an email to council members last week asking them to vote on proposed revisions to the Section 106 review process, according to draft language obtained by NPR. Council members were given one week to submit their votes, by the end of Friday, July 24. Any revision would still need to clear additional steps in the federal rulemaking process, including a roughly 30-day public comment period, before taking effect.
The proposed changes would redefine the types of properties eligible for historic designation, narrowing the definition to exclude “significant cultural landscape features” such as the Grand Canyon, according to the National Trust for Historic Preservation. The revisions would make public comment on federal projects optional — eliminating the current regulatory language that states “views of the public are essential to informed Federal decisionmaking” — and remove the requirement that agencies consult with Native American tribes.
“What it means is that the federal government, in its own discretion, can decide whether — if ever — to tell an American community that it’s about to do a major project that could harm or destroy a historic resource,” said Greg Werkheiser, founding partner at the law firm Cultural Heritage Partners. “The public will be completely cut out of any conversation around the future of places that matter to them in this country.”
Sara Bronin, who served as the Senate-confirmed chair of the advisory council under President Biden, said the changes would create an “alarming number of exemptions,” including for federally funded projects carried out by local authorities.
“Things like state highway widening, which in the past have been highly destructive of historic places, including not only whole neighborhoods but also burial sites … won’t [undergo Section 106 review] under the new rules,” Bronin said.
The National Register of Historic Places contains over 100,000 properties, encompassing more than 1.8 million buildings, structures, sites, objects and districts, ranging from houses to burial grounds, shipwrecks to landscapes.
“It’s the thing that defines America,” Werkheiser said. “The places that you go where your family has an attachment over generations … There are millions of these sites in this country, and all of them are made less protected by this effort by the Trump administration.”
The advisory council’s own memo framing the proposed revisions describes the post-World War II period of urban renewal and federal highway construction as “one of the greatest, yet most destructive building streaks in American history” — the same era that prompted Congress to pass the National Historic Preservation Act in 1966. The memo states that the current regulations under Section 106 “create confusion and uncertainty for both the public and regulated entities and contribute to agency delays,” citing a 2019 study that found consultation can take nearly seven years in extreme cases.
Charles Birnbaum, founding president and CEO of The Cultural Landscape Foundation, an education and advocacy organization based in D.C., told NPR he sees parallels between the proposed revision and the destruction that led to the original law.
“Consent of the governed is being replaced with my way or the highway,” he said. “This is the same haughty, retrograde, and myopic attitude that resulted in urban renewal, which decimated cities with highways and destroyed countless neighborhoods nationwide, especially underserved communities.”
Werkheiser called the vote a “foregone conclusion” given the council’s composition but said it sets the stage for a legal challenge.
“As sure as the sun rises and sets over Washington, D.C., there will be litigation in an attempt to stop this absurd gutting of protections of American history,” he said.