Cultural Resources

Proposed Revisions to the Section 106 Regulations

Current Status

On July 24, 2026, the Advisory Council on Historic Preservation (ACHP) voted to advance proposed revisions to the regulations implementing Section 106 of the National Historic Preservation Act (36 CFR Part 800). This vote advances the proposal through the federal rulemaking process, but it does not change the existing regulations.

For now:

• The current Section 106 regulations remain in effect.
• Projects already in consultation should continue under the existing requirements.
• The proposal must complete additional federal review before it is published in the Federal Register for public comment.
• The draft proposal may change before a final rule is adopted.

Background

Section 106 of the National Historic Preservation Act has guided the federal review of historic properties since 1966. It requires federal agencies to consider the effects of their undertakings on historic properties and to consult with Tribal Nations, State Historic Preservation Officers (SHPOs), and other consulting parties before making decisions that could affect those resources.

The regulations implementing Section 106, found at 36 CFR Part 800, have remained largely unchanged since 2001. The revisions now under consideration represent the most significant proposed changes to the process in more than two decades.

Proposed Revisions

Based on the draft advanced by ACHP, the proposal would:

• Reduce the scope and duration of consultation.
• Expand federal agency discretion over review schedules and certain decision-making responsibilities.
• Narrow the range of undertakings subject to Section 106 review.
• Revise how Areas of Potential Effects (APEs) are defined.
• Place greater emphasis on mitigation rather than avoiding or minimizing adverse effects.
• Reduce opportunities for Tribal participation during consultation.
• Modify documentation and reporting requirements for federal agencies.

Because the proposal is still moving through the rulemaking process, these provisions may change before a final rule is issued.

Potential Implications

If adopted, the proposed revisions would significantly change how Section 106 reviews are conducted for projects involving federal funding, permits, licenses, or land authorizations.

Based on the current draft, the proposed revisions would:

• Narrow the scope of project reviews and how Areas of Potential Effects (APEs) are defined.
• Reduce opportunities for meaningful consultation with Tribal Nations, State Historic Preservation Offices (SHPOs), and other consulting parties.
• Limit opportunities for public participation by reducing consultation requirements and increasing agency discretion during the review process.
• Give federal agencies greater discretion over review timelines and key decisions.
• Shift the emphasis from avoiding or minimizing impacts to historic properties toward mitigating impacts after they occur.
• Increase uncertainty as agencies, applicants, and consulting parties interpret and implement the revised regulations.

Taken together, these proposed changes represent far more than procedural revisions. They would fundamentally alter how historic and archaeological resources are identified, evaluated, and considered during federal decision-making. In CEI's view, these changes would weaken the collaborative framework that has been the foundation of the Section 106 process for nearly six decades by reducing meaningful consultation and placing greater emphasis on speed than on informed decision-making.

Projects currently undergoing Section 106 review should continue under the existing regulations. No changes to the current process have been adopted.

CEI's Perspective

Since 1967, Coastal Environments, Inc. has assisted clients with Section 106 compliance on transportation, coastal restoration, navigation, disaster recovery, energy, water resources, and other infrastructure projects throughout the Gulf Coast and across the United States.

Our experience has shown that the Section 106 process works best when cultural resources are identified early, consultation is meaningful, and decisions are based on complete and accurate information. Those principles have consistently led to better project planning, fewer conflicts, and better outcomes for agencies, applicants, Tribal Nations, and local communities.

Regulations should continue to evolve as projects, technologies, and public needs change. At the same time, any revisions should preserve the consultation, professional judgment, and informed decision-making that have made the Section 106 process effective for nearly six decades. The success of the process should be measured by the quality of the decisions it produces—not simply by the speed with which those decisions are made.

Next Steps

The proposed rule will next undergo review by the Office of Information and Regulatory Affairs (OIRA). Following that review, it is expected to be published in the Federal Register, where agencies, Tribal Nations, preservation professionals, project sponsors, and members of the public will have an opportunity to review the proposal and submit comments before any final rule is considered.

CEI will continue following the rulemaking process and evaluating how the proposed revisions may affect our clients and the cultural resource management community. As additional information becomes available, we will provide updates and practical guidance to help clients understand what any final changes could mean for project planning, permitting, and Section 106 compliance.