Federal officials move to speed historic-preservation reviews as tribes warn of weaker protections
Two federal actions are moving Section 106 historic-preservation policy in parallel: an Interior Department order already directing faster reviews and a separate Advisory Council on Historic Preservation proposal that could change the nationwide process if it is eventually finalized.
The distinction matters. Secretary’s Order 3452, issued August 20, 2026, is departmental policy. The ACHP action is still a proposed rulemaking and, as of August 28, remained under executive-branch review. It had not been published as a final regulation and did not yet change the nationwide rules.
What Interior ordered on August 20
Section 106 is the federal process for considering how projects connected to federal funding, permits, licenses or land decisions may affect historic properties before agencies make final decisions.
Order 3452 directs Interior bureaus to review their programs and identify, within 30 days, categories of undertakings that do not have the potential to affect historic properties, assuming historic properties are present. The order calls for a final list to be distributed within 60 days.
It also directs bureaus to pursue program alternatives and use efficiencies already available under the Section 106 regulations. Those measures include moving forward when State or Tribal Historic Preservation Officers do not meet regulatory response deadlines, consolidating steps when appropriate, coordinating Section 106 with the National Environmental Policy Act process and setting target dates for completion.
The order says bureaus should strive for a 180-day timeframe for resolving adverse effects, while making a reasonable and good-faith effort to work with consulting parties and allow the ACHP an opportunity to comment. It also makes offsite compensatory mitigation disfavored as a matter of Interior policy and requires bureau-head approval for it.
What ACHP voted to do
On July 24, the ACHP voted 15-5, with two abstentions, to advance a Notice of Proposed Rulemaking revising the regulations in 36 C.F.R. Part 800. The draft was sent to the Office of Information and Regulatory Affairs for interagency review before possible publication in the Federal Register.
Reginfo.gov listed the rulemaking under RIN 3010-AA10 as pending review. That status indicates the proposal remained in the federal review process rather than becoming a final rule.
Independent reporting and specialist legal analysis describe possible changes in the draft, including greater agency control over deadlines and documentation and a potentially more discretionary role for some consulting participants. Those descriptions concern a proposal, not current nationwide requirements, and the final regulatory text was not yet available as an adopted rule.
Why Tribal organizations object
In an August 18 statement, the National Congress of American Indians, Association on American Indian Affairs, National Association of Tribal Historic Preservation Officers and United South and Eastern Tribes said the proposal could narrow when Section 106 is triggered and what qualifies as a historic property.
The organizations also objected to proposed changes involving government-to-government consultation, sacred places, ancestral lands, burial places, traditional cultural properties, cultural landscapes, mitigation and judicial review. They said the draft would expand federal-agency discretion and could reduce Tribal participation in decisions about mitigation.
Those are advocacy positions, not findings that the proposed changes have already taken effect. The organizations said formal public comment is not a substitute for government-to-government consultation with Tribal Nations and warned that damage to sacred or culturally significant places may be irreversible.
Why supporters are pursuing changes
The ACHP’s July announcement frames the rulemaking as an effort to revise the regulations implementing Section 106. The stated policy case for changes is to make federal reviews more predictable and address uncertainty and delay, particularly for projects requiring federal approval, funding, permits or licenses.
Whether any final rule would shorten reviews, reduce disputes or change protections would depend on the text ultimately published, the public and Tribal consultation that follows, and how federal agencies implement it.
Who could be affected
Federal agencies and project applicants could see different timelines or documentation requirements if the ACHP proposal is eventually finalized. Potentially affected projects include infrastructure, energy, housing, transportation and other undertakings requiring federal approval, funding or licensing.
State Historic Preservation Officers, Tribal Historic Preservation Officers, Tribal Nations, preservation groups and members of the public could also see their roles change. For now, the Interior order applies within the department, while the ACHP proposal has not altered the nationwide regulatory process.
What happens next
The next decisive public step is publication of an NPRM in the Federal Register. That would begin a formal comment period and provide an opportunity for agencies, Tribal Nations, preservation organizations, project applicants and the public to respond. Additional government-to-government Tribal consultation, revisions, a final-rule decision and possible court challenges could follow.
For now, readers should treat the two actions separately: Interior’s August 20 order is an already-issued departmental directive, while the ACHP rewrite remains a proposal under review.
Sources
- U.S. Department of the Interior: Secretary’s Order 3452
- Advisory Council on Historic Preservation: Proposed Section 106 rulemaking
- NCAI, AAIA, NATHPO and USET: Joint Tribal statement
- Reginfo.gov: RIN 3010-AA10 review status
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