Proposed Changes to Section 106 of the Historic Preservation Act of 1966
The following is an opinion/editorial from our regular CNYW contributor Norman Kincaide
In an op-ed published in the Rocky Ford Daily Gazette, September 15, 2026, Ed Stafford of La Junta, wrote: “The ACHP (Advisory Council on Historic Preservation) has proposed new regulations that will devastate protections for all historic and scenic properties in the United States.” This alarmist view overstates the dire consequences of those who use Section 106, not as a means of historic preservation, but as a restriction on private property and a means to control economic activity and development.
The draft of the proposed changes was leaked to the Washington Post and other outlets. From this draft was obtained through GROK: “The ACHP is proposing revisions to the Council’s Section 106 Regulations to enhance clarity, provide greater regulatory certainty, align the rule with statutory and policy directives . . . The current regulatory language and its interpretations have resulted in uncertainties, delays and regulatory burdens that are not intended and do not represent the best reading or further the purposes of the NHPA. They have also given rise to significant uncertainty and inconsistent interpretations, leading to burdens on Federal agencies and industry stakeholders, complicating compliance and delaying actions.”
The enactment of the National Historic Preservation Act of 1966 (NHPA) was not meant as a mandate that historic preservation concerns be used to trump all other considerations. Congress framed the NHPA as a “consideration” statute, rather than a substantive roadblock to economic activity. “The current regulations implementing Section 106, however, create confusion and uncertainty for both the public and regulated entities and contribute to agency delays. A 2019 study of the NHPA review process found that in extreme cases, Section 106 consultation can take nearly 7 years. Even on average, electricity projects take 2.7 years, pipeline projects 2.0 years, and renewable energy projects 1.6 years.”
Delays in project implementation are part of a current phenomenon wherein modest procedural requirements have been transformed into blunt and haphazard tools employed by project opponents to try to stop or slow down infrastructure or construction projects.
“Section 106 of the NHPA is a flexible, purely procedural statutory provision that imposes no substantive mandate, but simply prescribes the necessary process for considering, as one factor among many, the impact of an undertaking on historic properties.” “The proposed revisions will ensure that agencies strike a more appropriate balance between evaluating the effects on historic properties and advancing critical federal projects, and that Section 106 reviews keep pace with the streamlined reviews under NEPA (National Environmental Policy Act).”
The ACHP is considering the following:
Applicants for federal funding or permits subject to Section 106 consultation be invited to become consulting parties. Paralleling most agencies’ new NEPA procedures providing a clear set of on and off ramps from the Section 106 process to guide agency practice. Providing an expedited process for approving an undertaking where there are no historic properties present. Making public comment optional, not mandatory, part of the Section 106 process, which accords with the text of Section 106, which provides explicitly for comment by the Council, but not the public. “The head of the federal agency shall afford the council a reasonable opportunity to comment with regard to the undertaking.” 54 U.S.C. Section 306108. Incorporation of economic impacts and cost considerations into the process of identifying avoidance, minimization, and mitigation measures; this ensures that practical concerns about how to address the effects to historic properties are not minimized or overlooked altogether. Revise the criteria for “adverse effect” to remove references to indirect and cumulative effects and including “only those reasonably foreseeable effects that have a reasonably close causal relationship to the undertaking.”
Removing language that change “the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance” and “introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features” constituted adverse effects. “Section 106 focuses on the ‘effect of the undertaking on any historic property,’ not on the surroundings of that property or its atmospherics.” Within this revision there is a distinction between effects on the property and its effects upon the surrounding environment, which is likely to change from generation to generation. Including the surrounding environment impermissibly broadens the authority of the statute while providing a target for litigation and obstructionism.
The following definitions are under consideration for clarifying, revision or adding key definitions. “Address adverse effects which has been added to introduce a term of art referring to those measures adopted to avoid, minimize, or otherwise mitigate the adverse effects of the undertaking on historic properties.” “Area of potential effects to make it clear that only direct effects of an undertaking must be considered.” The term “Consultation” is to inform the decision maker about whether a proposed undertaking may cause adverse effects to historic properties and consider options for resolving any such adverse effects, i.e., agreement among the parties is not required. Historic property is to be defined to clarify “that any historic property, including a tribal historic property, must include, or have included at some point in the past, tangible human improvements, or has been the location for specific human activities and must also be geographically compact.”
Property pressures on land owners in Southeastern Colorado include: to designate ranches and farms on the National Register (which may prevent the lease of cell phone towers or the construction of new water windmills), the push by Colorado Parks & Wildlife for perpetual conservation easements in the Purgatoire River Watershed, the purchase of water rights, designation of Wild & Scenic River on the Purgatoire River, restrictions on controlling prairie dogs on federal property, a proposed National Heritage Area that failed, and the failed expansion of Pinon Canyon Maneuver Site.
Substantive curbing of abuses is long overdue by individuals who nominate properties to the National Register without owner knowledge, notification or consent and those who oppose economic development using Section 106 as an instrument of delay if not cancelation. It reduces the effect of those who wish to expand the consultative aspect of Section 106 beyond its statutory limits, to in effect become as powerful as EPA intervention.
Rep. Kimmi Clark Lewis sought to curb the abuse of historic designation in southeastern Colorado through Colorado House Bill 19-1078, Landowner Consent Listing National Register, which was signed into law April 12, 2019. This bill stemmed from the nomination to the National Register of the Hils, Frank and Doll, Christina Homestead and the Charles E. Coy Homestead in September 2014, without owner knowledge, notification or consent.
Furthermore, a Multi Property Documentation Form (MPDF): Homesteading and Ranching Resources of the Purgatoire River Region, prepared by Colorado Preservation Inc., with a map covering a significant amount of southeastern Colorado was about to be forwarded to the Keeper of the National Register in Washington D.C. in January 2015, the same time the homesteads were discovered to have been nominated. An MPDF facilitates the nomination of properties to the National Register. Someone or some organization was in a hurry to nominate properties in southeastern Colorado.
This MPDF relied almost exclusively upon two 2011 studies in southeastern Colorado, (Historic Context Study of the Purgatoire River Region and Cultural Resources Survey of the Purgatoire River Region), also prepared by Colorado Preservation, Inc., that property owners were told would not be used for other than educational purposes. A demand notice by property owners was served upon Colorado Preservation, Inc. to pull the MPDF since it violated signed permission forms. The MPDF was pulled by Colorado Preservation, Inc. and the nominations for the homesteads terminated after the property owners complained. To say there have not been abuses in the historic nomination process overlooks the covetous desire of some individuals for control of property and economic development.
The answer to preserving your property is to sell your property rights for historic designation or perpetual conservation easement, while giving up clear title to your property. The late Rep. Kimmi Clark Lewis emphasized time and again, to maintain your private property free of clouded title, that is free of National Register designation and conservation easement.
Serving on the Otero County Historic Preservation Advisory Board, I questioned why I should nominate properties to the National Register that I did not own or even suggest to property owners. I knew it was a scam when it was suggested that I could nominate the operating shack at an old grain scales in Two Buttes, Baca County, CO. I resigned from the board in March 2014 because I no longer believed in its mission, which appeared to me to be controlling private property and viewshed. There may be individuals, unbeknownst to you, who are actively and surreptitiously working against your private property rights. Nobody has the right to nominate your property to the National Register of Historic Places without your knowledge, notification or consent. The result of such a nomination is nothing other than the theft of your private property rights.
None of the dire predictions of the destruction of historic places are true. Bent’s Old Fort is a National Park Service maintenance problem. Nor are there developments planned out at Sand Creek National Historic Site. It is long overdue for nomination abuses to be curbed by the revision of regulations that govern historic designation, in particular the dreaded specter of Section 106 compliance review.
Sources
Advisory Council on Historic Preservation, 36 CFR Part 800, Protection of Historic Properties, Action: Notice of Proposed Rule Making, pp. 1-9.
Norman Kincaide, “Homesteads Nominated For National Register Absent Owner Consent” Ag Journal, April 3, 2015
Norman Kincaide, “Challenging State and Federal Government Programs,” Rocky Ford Daily Gazette, June 23, 2015.
Norman L. Kincaide, Viewshed, Defeating a National Heritage Area, Amazon, 2025, pp. 218-225, 266-267.
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