Section 106 of the National Historic Preservation Act Under Threat
Utah, USA
History and Architecture
Law: Section 106 of the National Historic Preservation Act (NHPA)
Year Enacted: 1966 (now in its 60th year)
Scope: This is the main federal process for reviewing preservation, carried out under 36 C.F.R. Part 800.
Section 106 requires federal agencies to consider how their actions—such as projects they fund, permit, license, or approve—might affect historic properties before moving forward. Congress created the NHPA in 1966 after years of urban renewal and highway projects destroyed many historic downtowns, neighborhoods, and archaeological sites without much public input. The law established a system in which each state has a State Historic Preservation Office (SHPO) to review federal projects and ensure the public, Tribal Nations, and local governments have a say. Section 106 does not give anyone the power to stop federal projects. Instead, it is a four-step process to identify historic properties, assess impacts, and, when harm cannot be avoided, find ways to allow projects to proceed while still protecting important places.
On July 24, 2026, the Advisory Council on Historic Preservation (ACHP) voted to advance a proposed rulemaking to revise these regulations following an unassembled meeting convened by ACHP leadership on July 17, 2026. The draft revisions would alter key components of this framework by narrowing the scope of eligible historic properties, shifting authority toward unilateral agency determinations, reducing requirements for public and Tribal consultation, and emphasizing mitigation over avoidance.
What is Happening
Jurisdiction: Advisory Council on Historic Preservation (ACHP) / federal rulemaking (Office of Information and Regulatory Affairs, Federal Register)
Decision Type: Proposed rewrite of the regulations (36 C.F.R. Part 800) implementing Section 106.
On July 17, 2026, the ACHP's acting Vice Chairman shared a nearly complete rewrite of the Section 106 regulations and called for a quick, email-based Council vote within one week, rather than the usual 30- or 60-day review process.
On July 24, 2026, the ACHP voted 16-5-2 to advance a sweeping rewrite of Section 106 regulations (36 CFR Part 800) following a highly compressed, unassembled email vote. The proposed rule shifts authority away from collaborative consultation toward unilateral control by federal agencies. It narrows the definition of what counts as a historic property, makes public and Tribal participation discretionary, and removes requirements for SHPOs and THPOs to identify historic properties or to recommend initial mitigation measures.
Why This Matters
Section 106 requires federal agencies to consider the impacts of projects on historic properties. These regulatory changes would dismantle the established collaborative process and remove the standard requirements for "avoidance, minimization, and mitigation." This severely diminishes protections for historic places.
In Utah, the Section 106 process has produced tangible preservation successes across the state:
Buildings Saved or Protected By the Section 106 Process:
Ogden Forest Service Building: A 1934 Art Deco landmark declared federal surplus that could have gone to anyone for anything; Section 106 is why it was preserved with a Preservation Utah easement.
Fort Douglas: Core historic buildings of this National Historic Landmark were protected through easements secured in the Army-to-University of Utah land transfer.
Odd Fellows Hall (Salt Lake City): This historic, five-million-pound building was moved rather than demolished when the federal courthouse expanded.
Rio Grande Depot: Mitigation funded interpretive signage, expanded the Warehouse District, and put $250,000 into Preservation Utah's Revolving Loan Fund.
Archaeology Documented and Protected:
Nine Mile Canyon: One of the largest rock art concentrations in North America, protected through a negotiated agreement that still let natural gas development proceed—a case the ACHP itself lists as a national success story.
Dixie Drive Interchange (St. George): Allowed for the recovery of thirty Ancestral Puebloan structures and thousands of artifacts prior to construction.
South Temple Fremont Village: An ancient Fremont village was discovered and documented under South Temple during TRAX light rail construction.
Research and Interpretation Funded:
Section 106 mitigation has funded educational and research projects such as the "Coast to Coast: A History of Highway 6" exhibit at the Helper Museum, documentation of pioneer-era irrigation ditches statewide, and public interpretive materials, including the Strawberry Highline Canal brochure.
Check out this video for a three-minute explanation of how the Section 106 Process works.
Sources:
Media Coverage / Resources
Bipartisan Policy Center (June 3, 2026): "National Historic Preservation Act: Permitting Options for Congress"
Utah Public Radio (July 23, 2026): "Trump allies vote to weaken protections for historic sites, not just in D.C."
NPR (July 24, 2026): "Trump allies vote to weaken protections for historic sites — not just in D.C."
Advisory Council on Historic Preservation (July 24, 2026): "ACHP Votes to Move Forward with NPRM"
National Trust for Historic Preservation: "Section 106 is Under Threat: What You Need to Know"
Cultural Heritage Partners: Defend Section 106 Advocacy and Coalition Resources
Society for American Archaeology (July 27, 2026): "SAA Issues Statement On ACHP Draft Changes To Section 106"
SWCA Environmental Consultants (July 29, 2026): "Proposed Changes to Section 106: What Project Owners Need to Know"
Additional Helpful Resources
National Trust for Historic Preservation – https://savingplaces.org/section106
American Cultural Resources Association - https://acra-crm.org/advocacy/
Cultural Heritage Partners - https://culturalheritagepartners.com/
National Alliance of Preservation Commission – https://www.napcommissions.org/
National Association of Tribal Historic Preservation Offices - https://www.nathpo.org/
National Conference of State Historic Preservation Offices - https://ncshpo.org/news/
National Preservation Partners Network - https://prespartners.org/joint-advocacy/
Preservation Action - https://preservationaction.org/category/action/
Utah Public Radio (August 6, 2026): "Tribes and states oppose changes to historic preservation"
Davis Graham & Stubbs LLP (August 17, 2026): "ACHP Draft Rule Would Rewrite the Playbook for NHPA Section 106"
Mitchell Williams Law (August 28, 2026): "National Historic Preservation Act: National Conference of State Historic Preservation Officers Letter Addressing Section 106 Rules"
Key Dates & Deadlines
July 17, 2026: The draft rule was initially circulated to ACHP members.
July 24, 2026: ACHP voted to advance the proposed changes.
Aug. 2026: The draft rule is under interagency review by the White House Office of Information and Regulatory Affairs (OIRA). Once published in the Federal Register, a 30-day public comment period will open and may close as early as September 2026.
How to Take Action
Get Informed:
Watch Educational Webinars:
Watch our Section 106 webinar here:
Watch the restream of the National Trust for Historic Preservation Webinar:
Read:
Contact your members of Congress:
Tell them Utah's historic places matter, and ask them to oppose efforts to weaken Section 106.
Find your Representative here, your Senator here, and Utah Governor Cox's contact info here.
Suggested talking points:
Describe why a historic place in your community matters to you; personal connections are influential.
Note that Section 106 gives states, Tribes, local governments, and the public a voice in federal decisions that affect their communities.
Mention Utah's record—98 percent of reviews are finished in seven days or less—as proof that the process works and does not need to be weakened to be efficient.
Ask that any changes be made through an open and thoughtful process that maintains consultation and public participation.
Submit Substantive Comments:
Prepare to submit comments once the rule is officially published in the Federal Register.
Request a meeting with OIRA:
(The Federal Office of Information and Regulatory Affairs)
While the rule is under review, anyone can request a meeting to raise concerns. Best for organizations, professionals, and anyone comfortable with a more formal ask. Request the meeting here.
Gather specific local case studies:
Collect both past success stories and hypotheticals—that demonstrate the value of the Section 106 consultation process to include in advocacy messaging. You can submit them to members of Congress and our organization at advocacy@preservationutah.org.
Sign up for Advocacy Alerts here so you are ready to submit a public comment as soon as the federal comment window opens.
Outcome
The expedited email vote faced significant pushback; the National Trust for Historic Preservation (NTHP), the National Conference of State Historic Preservation Officers (NCSHPO), and the National Association of Tribal Historic Preservation Officers (NATHPO) all voted against the measure.
A broad coalition has formed, including the National Preservation Partners Network (NPPN)—which represents over 160 preservation organizations—and Cultural Heritage Partners, to actively oppose the changes and demand a return to transparent consultation.
We will provide an update following the close of the federal public comment period.
What Comes Next
The preservation community is awaiting the conclusion of the OIRA review and the subsequent publication in the Federal Register, which will trigger the public comment period.
Preservation Utah and coalition partners will continue to monitor the rulemaking timeline and will send out alerts with specific docket numbers once comments can be formally submitted. Lawsuits are anticipated if the rule changes proceed as drafted.