ACHP Proposes Sweeping Overhaul of Section 106 Tribal Consultation Regulations

Section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C. § 306108) requires federal agencies to "take into account" the effects of their undertakings on historic properties and to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment before approving any such undertaking. The implementing regulations at 36 C.F.R. Part 800 have governed the consultation process since their last comprehensive revision in 2000. The regulations establish a structured, multistep process through which agencies identify historic properties, assess the effects of federal undertakings on those properties and consult with State Historic Preservation Offices (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian Tribes (including Alaska Native Corporations (ANCs)), Native Hawaiian Organizations (NHOs) and other consulting parties to resolve adverse effects.

On July 17, 2026, the ACHP's vice chairman circulated a draft revision of 36 C.F.R. Part 800. On July 24, 2026, ACHP council members voted to move forward with a Notice of Proposed Rulemaking (NPRM) that would substantially revise 36 C.F.R. Part 800. The proposed revisions are extensive, touching virtually every section of the existing regulations. The NPRM will now proceed to review by the Office of Information and Regulatory Affairs (OIRA) and then to publication in the Federal Register, where it will be open for a 30-day public comment period.

Proposed Changes to the Section 106 Process

Recharacterization of Section 106 as Purely Procedural

One of the most significant changes in the proposed rule is the addition of new language in Section 800.1 expressly characterizing Section 106 as "procedural," stating that it "does not impose any substantive historic preservation outcomes or obligations, nor does it restrict the scope of permissible decisions available to the agency official." The proposed rule further provides that the agency official "must consider an undertaking's effects to historic properties, while balancing the nation's interest in historic preservation with its other interests, such as economic development." This language represents a notable departure from the existing regulations, which, though acknowledging the procedural nature of Section 106, do not contain an express invitation to weigh historic preservation against other policy interests such as economic development.

Elimination of the "Avoid, Minimize, or Mitigate" Framework

The existing regulations direct agencies to "seek ways to avoid, minimize or mitigate" adverse effects on historic properties and prioritize avoidance over lesser measures. The proposed rule replaces this framework with a directive to "identify reasonable mitigation measures to address adverse effects" and "memorialize the measures adopted to address adverse effects or the agency official's determination that other considerations outweigh effects on historic preservation." The elimination of "avoidance" and "minimization" as express regulatory objectives, combined with the new language permitting agencies to determine that "other considerations outweigh" preservation, could substantially shift the balance of the process away from preservation outcomes.

Similarly, in Section 800.1(a), the existing directive that the process be "initiated early in the undertaking's planning, so that a broad range of alternatives may be considered" is amended to replace "alternatives" with "mitigation," narrowing the scope of what the process is designed to explore.

New "Section 106 Report" Replaces Step-by-Step Consultation

Under the current regulations, Section 106 review proceeds through a series of discrete steps: initiation (Section 800.3), identification of historic properties (Section 800.4), assessment of adverse effects (Section 800.5) and resolution of adverse effects (Section 800.6), each of which involves consultation with SHPOs/THPOs, Tribes and other consulting parties.

The proposed rule consolidates these steps into a new framework centered on an agency-prepared "Section 106 Report" (Report). Under proposed Section 800.4, the agency official would prepare the Report, which would contain the identification of historic properties, assessment of effects, evaluation of adverse effects and proposed mitigation measures. The Report must be "analytic, concise, and no longer than necessary." Upon completion, the agency official would certify the Report, attesting that it represents the agency's "good-faith effort to identify an undertaking's potential effects on historic properties" and that any prioritization of effects is based on "the agency's expert judgment." The certification further provides that "any considerations addressed briefly or left unaddressed are presumed to be intentional based on the agency's judgment that such considerations are comparatively unimportant or frivolous."

Once certified, the Report would be circulated to consulting parties under proposed Section 800.5 for comment, though the consultation structure appears significantly more limited than the current iterative process.

Agency Control over Deadlines

The proposed rule introduces a new provision at Section 800.1(a)(2) granting agency officials the authority to "alter any deadline in this part, to be shorter or longer" simply by notifying the affected party by letter and explaining how the resulting timeline "fulfills the agency official's statutory obligation to 'afford the Council a reasonable opportunity to comment with regard to the undertaking.'" This provision would give agencies significant unilateral control over the pace of consultation, potentially compressing timelines for SHPO, THPO, Tribal and public review. On the other side of the coin, agency officials could use this authority to perpetually delay project approval.

Narrowing the Definition of "Area of Potential Effects"

Under the current regulations, the "area of potential effects" (APE) is defined as the geographic area within which an undertaking "may directly or indirectly cause alterations in the character or use of historic properties." The proposed rule narrows this definition to encompass only "direct material" alterations, removing the reference to "indirect" effects. This change could significantly reduce the geographic and causal scope of the Section 106 review, particularly for undertakings with the potential to have moderate or far-reaching visual, audible, atmospheric or cumulative effects on historic properties and cultural landscapes. Narrowing the APE likewise potentially limits the stakeholders who have standing to challenge these effects, including but not limited to Tribal/indigenous stakeholders with ties to the region in which the project is being developed.

Revised Definition of "Historic Property"

The proposed rule modifies the definition of "historic property" in Section 800.16 to specify that a "physical location qualifies as property" under the NHPA only if it meets certain criteria. The draft also references the statutory definition and adds the qualifier that eligible properties must "meet the National Register criteria" rather than the broader existing formulation that includes properties "that may be determined to be eligible for inclusion on" the National Register. These changes could affect the treatment of traditional cultural properties and landscapes that do not involve fixed physical structures but derive their significance from patterns of use, association or cultural practice.

Reduced Public Participation

The existing regulations provide that "[t]he views of the public are essential to informed Federal decisionmaking in the section 106 process" and direct agency officials to "seek and consider the views of the public." The proposed rule replaces this language with a new framework under which the agency has "exclusive discretion to determine the usefulness of public participation" and must merely "consider how offering an opportunity for public participation is balanced against the cost of other values, such [as] the public interest." The change from mandatory public engagement to discretionary engagement represents a significant reduction in the role of community stakeholders in the consultation process.

Resolution of Adverse Effects: Memorandum of Decision

Under the current regulations, adverse effects are typically resolved through a Memorandum of Agreement (MOA) executed by the agency, SHPO/THPO and, where participating, the Council. The proposed rule introduces a new alternative pathway under which the agency official may, after receiving comments on the Section 106 Report, "explain, via a memorandum of decision, the agency's determination on addressing adverse effects through the Section 106 Report." This mechanism would allow agencies to resolve adverse effects unilaterally, without requiring the agreement of the SHPO/THPO or other consulting parties.

Changes to Tribal Consultation

The proposed rule retains the requirement that agencies consult with Indian Tribes (including ANCs) and NHOs that attach religious and cultural significance to historic properties. However, the draft makes several notable changes. It adds a qualifier that Tribal consultation must be "consistent with the definition of ‘historic property' in 36 CFR 800.16(j)," potentially tying Tribal consultation rights to the narrower proposed definition of historic property. The draft also modifies the provisions governing post-review discoveries on Tribal lands, replacing the requirement to "comply with applicable tribal regulations and procedures and obtain the concurrence of the Indian tribe" with a requirement to "comply with applicable tribal laws and consult with the THPO or Indian tribe, as applicable," thereby eliminating the Tribe's concurrence right and substituting a lesser consultation obligation. The standard also appears to misapprehend the NHPA's expansive definition of "tribe" and, therefore, arguably eliminate the requirement to consult with "tribes" who do not have "tribal laws."

NEPA Integration

The proposed rule retains the existing framework for integrating Section 106 compliance with the National Environmental Policy Act (NEPA) under Section 800.8 but aligns the NEPA-integration pathway with the new Section 106 Report structure. Agencies using NEPA documents to satisfy Section 106 would be required to submit the relevant environmental document to consulting parties "as if it were a Section 106 Report under this part, and follow the same procedures as set forth in §§ 800.5-6."

Transition Provisions

The proposed rule adds a new Subpart F (Section 800.17) governing the transition between the existing and proposed rules. Under the transition provisions, any consultation that has been initiated under the existing regulations prior to the effective date of the rulemaking would continue under the existing rules, unless the project sponsor requests in writing that the consultation be processed under the new rules. For one year after the effective date, a project proponent may elect to undertake consultations under the prior version of the regulations.

The proposed rule also adds a new Subpart G (Section 800.18) containing a severability clause providing that if any section of the rule is stayed or determined to be invalid, the remaining sections will continue in effect.

Practical Implications

The proposed amendments, if finalized, would have far-reaching implications for a broad range of stakeholders in the typical consultation process.

For federal agencies and project proponents, the revisions would streamline the consultation process by consolidating the existing multistep framework into an agency-controlled reporting mechanism. The ability to alter regulatory deadlines, certify a consolidated Section 106 Report and resolve adverse effects through a unilateral memorandum of decision would give agencies significantly more control over the pace and outcome of the process. Project applicants seeking federal permits, licenses or funding may experience faster review. Project applicants could also benefit from reduced ongoing burden during construction. On the other hand, early projects to take advantage of the new rules will likely face increased litigation.

For SHPOs and THPOs, the shift from an iterative consultation process to a comment-and-response model centered on the Section 106 Report would reduce their role from active participants in shaping the identification, assessment and resolution of effects to reviewers of a completed agency work product. The agency's authority to alter deadlines could further compress the time available for SHPO and THPO review.

For Indian Tribes/ANCs and NHOs, the narrower definition of "historic property" and the qualifier linking Tribal consultation to that definition raise concerns about the treatment of traditional cultural properties and landscapes. Tribes, ANCs and NHOs should closely examine whether the proposed definitional changes could affect the eligibility of properties of religious and cultural significance and the scope of the agency's consultation obligations.

For historic preservation advocates, local governments and members of the public, the reduction of public participation from a mandatory element of informed federal decision-making to a matter of agency discretion represents a significant change. The removal of the "avoid, minimize, or mitigate" hierarchy and the introduction of language permitting agencies to balance preservation against economic development further shift the regulatory framework away from preservation outcomes.

Next Steps

If approved by the ACHP, the NPRM will proceed to OIRA review and subsequent publication in the Federal Register. The anticipated 30-day public comment period will provide an opportunity for interested parties to submit formal comments. Holland & Knight will continue to monitor these developments and is available to assist clients in evaluating the proposed changes and preparing comments.

For more information on the proposed amendments to 36 C.F.R. Part 800 or their implications for your projects and interests, please contact the authors of this alert.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.