Federal agency moves to change historical preservation rules. What’s the impact?

The Advisory Council on Historic Preservation (www.achp.gov) is a little-known federal agency that makes decisions with potentially major impacts on development and

infrastructure. Established by federal law, the agency advises Congress and the White House on federal preservation policy relating to the National Historic Preservation Act (NHPA).

Anyone interested in construction that may involve historical preservation issues should be aware of ACHP’s proposed overhaul of the NHPA’s Section 106 regulations (here). 

On July 24, 2026, ACHP approved a Notice of Proposed Rulemaking and the draft is currently undergoing interagency/Office of Management & Budget (OMB) review before publication. If approved, the proposal would substantially revise how federal agencies conduct Section 106 review under the National Historic Preservation Act.

I saw this issue from the permitting side while serving as Commander and District Engineer of the Corps’ Portland District from 2011 to 2013 when the District implemented the Corps’ 2012 Nationwide Permit program. The program was designed to streamline authorization of recurring categories of projects but Section 106 remained an important part of the permit process. Where a proposed activity had the potential to affect historic properties, the District Engineer was responsible for determining necessary consultation, identifying the applicable permit area on a case-by-case basis, and ensuring that Section 106 requirements were satisfied prior to approval.

Among other things, the proposal would:

• Give federal agencies considerably more control over the Section 106 process than they have now, 

• Narrow the legal concept for an “Area of Potential Effects” (APE) toward direct material alterations, 

• Give federal agencies greater discretion over public participation and consultation schedules, and 

• Move from the current emphasis on avoiding, minimizing, and mitigating adverse effects. 

The proposal also contemplates an agency-prepared Section 106 Report that would consolidate the agency's findings and decisions.

The current changes could be particularly significant for the Army Corps of Engineers and any other federal agency with large infrastructure and Civil Works programs. First, this could impact the timing and scope of Section 106 review for projects such as navigation improvements, dredging, flood-control projects, and other major Civil Works undertakings. Narrower APE definitions and reduced consultation requirements could shrink the geographic and analytical scope of reviews and compress timelines for projects such as navigation improvements, dredging, flood control, and other Army Corps Civil Works undertakings—potentially accelerating delivery while limiting consideration of broader or cumulative effects.

Second it potentially represents a significant policy shift in the balance between project delivery and historic-preservation consultation. The proposal moves the process from a consultation-heavy model (in which State and Tribal Historic Preservation Officers, tribes, local governments and others have structured roles and the emphasis is on avoiding/minimizing harm) toward greater unilateral agency discretion. Critics see this as tilting the balance toward faster project delivery at the expense of historic-preservation consultation; proponents frame it as streamlining a process that can stretch years.

For context, the Corps’ 2012 rulemaking specifically recognized that effects such as visual and noise impacts could extend beyond the immediate project area. A narrower APE focused on “direct material alterations,” as contemplated by the proposed rule today, could therefore have allowed some projects to proceed with a smaller geographic area of review and potentially less consultation. 

This could have reduced burdens on both applicants and the Corps but it also could have excluded some indirect effects that were considered under the framework in place. This illustrates both sides of the current debate: Section 106 can add time and complexity to permitting, but the scope of consultation determines what historic properties and effects are considered before a federal permit is issued.  

There is no public timeline but I believe it is likely the Notice of Proposed Rulemaking will be published this fall. 

Stay tuned as this may be turn into an issue with significant impact on development and infrastructure projects affected by historical preservation issues.

Col. (Ret) John Eisenhauer

Senior Advisor

A member of the Dawson team since 2014, John Eisenhauer was the 59th Commander and District Engineer of the Army Corps of Engineers Portland District.