ACHP Rule Changes Threaten U.S. Cultural

The Advisory Council on Historic Preservation (ACHP) voted in July to advance proposed new regulations for Section 106 of the National Historic Preservation Act. These changes, reported by Live Science, would significantly alter how federal agencies assess impacts on historic and cultural properties, potentially removing protections for vast categories of sites.

Dr. Joe Watkins, a Choctaw Nation member and past president of the Society for American Archaeology, has criticized the move. The proposed rules would give federal agencies discretion to decide if public participation is useful before approving projects that might damage historic properties.

Weakening Tribal Consultation

The new regulations would allow federal agencies to approve projects damaging Tribal sacred places without consulting Tribal Nations. This contradicts established federal law requiring government-to-government consultation. Under the proposed system, an agency official would prepare a Section 106 report and circulate it for comment. However, officials would have no obligation to respond to or incorporate those comments before issuing a final decision.

Narrowing Definitions, Removing Protections

The rules introduce a new, restrictive definition of a "historic property." To qualify, a site must include tangible human improvements, like built structures, and be geographically compact. This definition would exclude entire categories of places from Section 106 consideration.

The regulations specifically preclude "noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes." Dr. Watkins states this changed definition could remove protections for 99% of American Indian heritage.

Redefining Impact and Mitigation

The proposal also waters down what constitutes an "Adverse Effect" on historic properties. It removes consideration of indirect, cumulative, visual, atmospheric, or audible effects. Consequently, building and operating a casino or amusement park on a site like Mount Vernon might not be considered an adverse effect. Furthermore, agencies would not be required to avoid or minimize adverse effects if they decide other considerations outweigh preservation.

Mitigation efforts become optional. Federal agencies would only have to consider measures to lessen a project's impact if they are deemed "technically and economically feasible."

Advocates for the new rules argue the existing regulations slow projects and increase costs. They claim the new system provides more precise information for industry and allows for faster, more predictable reviews. The new regulations are currently under review with the Office of Information and Regulatory Affairs within the White House Office of Management and Budget.