The federal law designed to protect the nation’s cultural and historical sites turns 60 on Thursday, but it may not survive beyond its diamond jubilee.
The National Historic Preservation Act is at risk of being gutted beyond recognition because of proposed regulatory and statutory changes, five experts told The Washington Times.
The experts are part of a coalition of stakeholders rallying opposition to a bipartisan Senate permitting overhaul bill that would make drastic changes to the NHPA’s Section 106 process, which requires federal agencies to consider impacts on archaeological and cultural sites and historical structures before approving a road, bridge, pipeline, data center or any other major development project.
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“This legislation will effectively end the 60-year-old process of historic preservation in America,” said Greg Werkheiser, founding partner of Cultural Heritage Partners.
His firm helps tribal nations, local governments, nonprofits and other coalitions working to protect historic and culturally significant sites — burial grounds, historic buildings, Civil War battlefields and more — navigate the Section 106 process.
Mr. Werkheiser and other opponents say the permitting bill significantly narrows projects subject to a 106 review, removes the public as a consulted party and infringes on tribal and state rights, among other concerns.
Terry Klein, another longtime Section 106 consultant and chair of the Society for Historical Archaeology, said the permitting bill is designed to expedite projects, but “in the context of historic preservation, it does exactly the opposite.”
“It’s going to result in late discoveries. It’s going to anger tribes, communities, the public when stuff is either damaged or destroyed that they did not know about,” he said, saying that could lead to litigation or other roadblocks.
The bill, slated for a procedural vote in the Senate after the election recess, was negotiated by leaders of the chamber’s Environment and Public Works and Energy and Natural Resources committees.
The measure makes changes to several laws, including the National Environmental Policy Act, the Clean Water Act and the Endangered Species Act, designed to speed up the permitting process while keeping important reviews in place.
This article focuses on changes to the NHPA and the mounting opposition to that section of the bill.
A spokesperson for Senate Energy and Natural Resources Committee Chairman Mike Lee, Utah Republican, said the bill eliminates “the ability to use an open-ended review process to hold projects hostage indefinitely.”
Addressing concerns raised by tribes, the spokesperson said the bill codifies tribal participation and protections in the Section 106 process for the first time and authorizes millions of dollars in funding for Tribal Historic Preservation Offices.
Offices for the other committee leaders who negotiated the deal — Sens. Martin Heinrich, New Mexico Democrat; Shelley Moore Capito, West Virginia Republican; and Sheldon Whitehouse, Rhode Island Democrat — did not respond to requests for comment.
From LBJ to 106 Strong
The enactment of the National Historic Preservation Act in 1966 was a response to postwar-era urban renewal and highway construction that decimated historic sites, such as New York’s original Penn Station.
Lyndon B. Johnson’s administration supported a special committee on historic preservation, organized under the U.S. Conference of Mayors, whose recommendations formed the basis of the NHPA.
The committee’s report, “With Heritage So Rich,” found that roughly half of the 12,000 places documented under a 1933 preservation program, the Historic American Buildings Survey, had been destroyed or damaged beyond repair.
The NHPA and the Section 106 review process were intended to better protect cultural and historical sites during development.
Today, more than 800 organizations say the law is under threat because of the Senate permitting bill and the Advisory Council on Historic Preservation’s proposed regulatory changes to the Section 106 process released in July.
The Senate bill “basically picks up all the worst parts” of the proposed regulations, Mr. Werkheiser said.
The 106 Strong coalition, which his firm is helping lead, suggests Congress shelve the bill for this session — or at least remove the section that alters the NHPA — and work with stakeholder groups they should have consulted earlier in the process.
The law has worked well for 60 years because of such consultation and compromise, said Maureen Meyers, director of archaeology at New South Associates.
Government agencies hire her firm to conduct archaeological surveys and other cultural resource management studies that are sometimes needed to approve a project.
Ms. Meyers said the bill significantly narrows the definition of an “undertaking” that would trigger a 106 review. For the remaining projects, the government would be required only to check existing archaeology files in most cases, while physical surveys of the project sites would be few and far between.
“You have one chance to excavate a site,” Ms. Meyers said. “If a bulldozer comes in and destroys the data, then there’s nothing left to learn.”
Ms. Meyers said the reduction in archaeological reviews would lead to job losses, noting that roughly 80% of working archaeologists in the U.S. are employed by private cultural resource management firms that conduct Section 106 reviews.
The process has dramatically increased the number of documented historic sites and buildings.
Across 43 states whose historic preservation offices responded to data requests compiled by Ms. Meyers, there are now records of more than 2 million historical sites and more than 4 million structures and buildings, compared with roughly 100,000 across both categories before NHPA was enacted in 1966.
No public input
One of the opponents’ chief concerns about the bill is that it removes the public as a consulted party in Section 106 reviews.
“Practically speaking, that means data centers [and other projects] are going to get built, and the public is going to find out about it when the bulldozers arrive, and not before,” Mr. Werkheiser said.
The bill says federal agencies conducting Section 106 reviews “may” — a softened version of the current law’s “shall” — consult with the project applicants, local governments, state and tribal historic preservation officers, Indian tribes and Native Hawaiian organizations. Those parties would have 30 days to provide input.
The public is no longer mentioned.
“The public sometimes knows about places where other folks do not,” Mr. Klein said. “It’s their history that is being affected.”
Ms. Meyers offered an example of a road widening project in Varina, Virginia, where public input made a difference.
She found no issues during her archaeological survey, but then a local man contacted the state transportation department to report a cemetery on the site, hidden deep beneath pavement and a large dumpster.
“There were three children’s burials there from the early 1900s,” Ms. Meyers said, explaining that the mother of the deceased children had asked her neighbor, the man’s mother, to ensure they were not forgotten.
Because the man spoke up, the children’s coffins were able to be safely removed and reburied, she said.
Ms. Meyers said the concerns extend beyond protecting burial grounds to areas full of historical buildings, such as Old Town Alexandria, Annapolis and the District of Columbia.
“Tourists are drawn to these places because these are valuable resources, and it’s going to really affect the tourism in these areas” if development is approved without public consultation, she said.
Members of the public are challenging some of President Trump’s projects across the District, such as his proposed 250-foot Triumphal Arch, through the 106 process.
Tribal concerns
Although tribal nations remain a party to be consulted, the bill’s changes to Section 106 take away much of their autonomy in defining sites of religious or cultural significance.
“What we’re seeing in particular through this legislation is really an assimilation-era approach to federal Indian policy, and they’ve repackaged it as permitting reform,” said Ira L. Matt, executive director of the National Association of Tribal Historic Preservation Officers.
The bill requires religious or cultural sites eligible for 106 considerations to have an “identifiable geographic location or feature,” such as a building, structure or artifact.
That definition excludes natural features that are sacred to many tribes, such as ceremonial sites, said Crystal Miller, cultural sovereignty director for the Association on American Indian Affairs.
“A lot of ceremonies that my people do, as an example, happen at certain times a year on certain mountains,” she said. “Those sacred places would not be protected under the new proposed regulations.”
For sites still eligible for 106 consideration, the bill “replaces the traditional requirement to avoid, minimize or mitigate adverse effects with the weaker standard to address them,” Ms. Miller said — a change she said provides significantly more legal wiggle room.
Similarly, the bill changes the language governing federal agencies’ consultation with tribes from “shall” to “may,” suggesting that consultation is optional, she said.
She said the measure also places tribal nations in the same bucket as other stakeholders, thereby removing recognition of inherent tribal sovereignty.
“The federal government does not owe a trust and treaty responsibility to anybody else besides native nations,” Ms. Miller said.
Another sovereignty issue is the bill’s provisions allowing the federal government to suspend funding or take over the 106 process if the tribe’s preservation office does not follow the new standards, Mr. Matt said.
“Basically, if we’re not presenting our culture through the Western structure and system that they consider appropriate, they can come in and go and speak for us and articulate what is of concern and what our culture is on our behalf,” he said.
Beyond tribal jurisdictions, state historic preservation offices face similar financial or jurisdictional penalties if they do not adhere to the new standards.
Erik Hein, executive director of the National Conference of State Historic Preservation Officers, slammed the bill’s “arbitrary deadlines and punishments” and “unfunded mandates” for his members.
Federal hang-ups
The 106 Strong representatives said they are open to improvements in the process, but lawmakers and regulators are trying to solve the wrong problems.
All the experts interviewed for this report said one of the issues causing delays in permitting is understaffing at the federal agencies that must lead Section 106 reviews — a perennial problem exacerbated by the Trump administration’s cost-cutting reductions in force.
Mr. Matt said permitting delays also occur because project applicants and federal agencies wait until “too late in the game” to consider a project’s impact on historic and cultural sites.
Despite that, most projects move forward without much of a fight.
Cultural Heritage Partners reviewed federal lawsuits to see how many claims stemmed from the NHPA. In the past 35 years, there have been a total of 266 cases, an average of eight per year.
Ms. Meyers is struck by the timing of the legislative and regulatory efforts to gut the NHPA.
“It’s America’s 250th anniversary,” she said. “It’s so ironic to me that we’re about to just walk away from so much history — and sad.”
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