The Nickel Report

On July 24, 2026, the Advisory Council on Historic Preservation (ACHP) reportedly voted to move forward with a Notice of Proposed Rulemaking (NPRM) to amend the National Historic Preservation Act (NHPA) Section 106 implementing regulations. Subsequently, this NPRM was submitted to the White House Office of Management and Budget (OMB) and is now awaiting review and approval to be published in the Federal Register. While the NPRM has not yet been publicly released, a draft that was sent to ACHP members was leaked to the press in late July. If the NPRM is similar to the leaked draft, the proposed changes would significantly streamline the Section 106 process for energy, mining, and infrastructure projects on federal lands or other entities requiring federal environmental permits.

NHPA Section 106 requires federal agencies to evaluate the impact of their projects on historic properties (which can include cultural and Tribal resources) and consult with State Historic Preservation Offices (SHPOs), Tribes, and other interested parties to resolve adverse impacts to historic properties. For many energy, mining, and infrastructure projects, Section 106 consultation can be a major time driver for the federal permitting process and a source of delay.

The Section 106 consultation process is overseen by the ACHP, which is an independent federal agency comprised of 24 members, including a mix of members appointed by the President (e.g., governors, mayors, experts, Tribal representatives) and members who serve by virtue of their office (e.g., Secretary of the Interior, Chair of National Trust for Historic Preservation). The ACHP is led by the Chairman, which is a Senate-confirmed position. The ACHP’s implementing regulations guide federal agencies’ Section 106 consultation process. Some agencies, like the US Army Corps of Engineers, have their own Section 106 consultation regulations that are keyed to the ACHP regulations.

Drawing on the Supreme Court’s 2025 Seven County Infrastructure Coalition v. Eagle County decision regarding the National Environmental Policy Act (NEPA), the ACHP’s draft proposed rule is framed as a “course correction” for Section 106 consultation and emphasizes NHPA as a procedural statute. The draft proposed rule would streamline the Section 106 process by eliminating requirements to have agreement with the SHPOs and Tribes for all reviews, clarifying the scope of effects that should be evaluated, and limiting the scope of historic properties subject to review.

The draft proposal would:

• Provide an expedited process for approving an undertaking where there are no historic properties present.
• Encourage the use of procedures that serve roughly the same function as categorical exclusions under NEPA, exempting activities that federal agencies have determined will have no or minimal environmental effects under NEPA from the Section 106 process.
• Make public comment an optional, not mandatory, part of the Section 106 process.
• Change the Section 106 finalization process to allow the agency to memorialize its final decision in either a Memorandum of Agreement or, unilaterally, in a Memorandum of Decision. SHPOs, Tribes, and consulting parties would be able to comment on a Memorandum of Decision, but SHPO sign-off would not be required.
• Clarify that the relevant agency is the driver of the Section 106 process and that SHPO or Tribal agreement is not necessary for the agency to proceed.
• Clarify the consideration of effects by:
  • Revising the criteria for “adverse effect” to remove references to indirect and cumulative effects and include “only those reasonably foreseeable effects that have a reasonably close causal relationship to the undertaking.”
  • Removing certain language to clarify that the focus should be on the historic property itself, not the surrounding environment or its atmospherics.
  • Limiting the Area of Potential Effect (APE) by defining it as “the geographic area or areas within which an undertaking causes direct material alterations to historic properties …”
• Change the “consultation” definition to mean “the process of seeking and considering views of other parties regarding matters arising in the section 106 process.”
• Change the definition of “historic property” to require that any historic property, including a tribal historic property, must include, or have included at some point in the past, tangible human improvements and must also be geographically compact. The proposed definition would clarify that unimproved natural features (such as mountains, valleys, bodies of water, or landscapes) are not historical properties.

Once the NPRM clears OMB review, it would be published in the Federal Register, with a public comment period. A final rule likely would be issued in 2027.

Takeaways and Implications

• This NPRM marks the administration’s latest effort to streamline environmental reviews and promote project development. If the NPRM mirrors the draft, the proposal could help eliminate delays in the Section 106 process.
• For project proponents and federal agencies, the proposed revisions likely would increase efficiency by eliminating aspects of public participation and authorizing the federal agency to act unilaterally, without SHPO or Tribal agreement.
• Affected stakeholders should monitor formal rulemaking procedures and, if interested, submit comments.
• The proposed rule is likely to be controversial and subject to litigation.