Comment on Proposed Changes to Section 106
The Issue
The presidentially appointed Advisory Council on Historic Preservation (Council) proposes to revise Section 106 of the National Historic Preservation Act (NHPA). Congress enacted the NHPA in 1966 in response to public outcry over the rapid, widespread loss of historic places at federal hands. The NHPA is premised on the Federalist principle that every American has opportunity to comment on federal actions. Section 106 outlines the process by which federal agencies consult with State Historic Preservation Offices (SHPO), Tribal Historic Preservation Offices (THPO), local governments, and the public on treatment of historic properties.
Proposed changes could impact protections for historic places by:
- Eliminating opportunities for states, Tribes, local governments, and citizens to comment on Federal undertakings;
- Excluding cultural landscapes from assessments of project effects;
- Removing consideration of visual, auditory, and other indirect effects to historic properties; and
- Removing federal obligations to avoid adversely affecting historic properties.
When Commenting
- Identify yourself and your connection to a historic place.
- State how proposed rule changes would impact you and your community’s economy, culture, identity, and quality of life.
- Humanize your appeal by telling your story
- Limit the length of your letter to two pages.
- Be polite and to the point.
- Avoid adopting form letters.
Key Points
- Congress established the NHPA on the Federalist principle that states, Tribal Nations, local governments, and the public should have a say in federal actions. Proposed changes leave public comment to federal agency discretion.
- Section 106 mandates a procedure, not an outcome. Consulting parties cannot veto federal projects. The procedure allows for projects that would adversely affect a historic property to advance after good faith consultation and agreed upon mitigation.
- Only 2.2% of 4,408 Montana projects resulted in adverse effect findings between 2020 and 2025.
- Montana SHPO’s average response time was 9.59 days due to numerous efficiencies introduced into the Section 106 process: paperless eConsultation; expedited review in declared emergencies; and 70 active programmatic agreements that greenlight routine, non-adverse projects.
