In July, a government agency tasked with protecting our cultural heritage abdicated its responsibility, voting to further industry's pursuit of profit over protecting sites of cultural significance. The Advisory Council on Historic Preservation (ACHP), the only federal agency whose sole mission is promoting preservation of America’s historic places, voted to advance a proposed new rule that would make sweeping changes to how Section 106 of the National Historic Preservation Act is implemented. By doing so, the Council is opening the door for federal agencies to bulldoze sacred Indigenous sites and important archaeological sites.

Section 106 requires federal agencies to assess the effects of their actions — or the actions they license or permit — on historic, archaeological, and cultural properties listed in or eligible for listing in the National Register of Historic Places. Additionally, agencies must attempt, to the extent possible, to minimize harmful effects on these significant places. The rules governing Section 106 have been in place since 1974. As part of that framework, the government is legally required to consult with Tribal Nations about projects that may destroy or damage their sacred places or culturally significant resources.

The proposed new regulations destroy the idea behind consultation. For instance, they would give federal agencies the discretion to decide whether public participation will be useful. Essentially, the agencies get to decide whether to notify the public or provide opportunity for public comment before they approve projects that might damage or destroy historic properties.

It would also give federal agencies the right to approve projects that may damage or destroy Tribal sacred places and other culturally significant resources without consulting with Tribal Nations or seeking their expertise about them. This violates federal law and jurisprudence, which recognizes Tribal Nations as "domestic, dependent nations," and requires consultation with them on a government-to-government basis; Tribal Nations are not merely “interested parties” like community organizations or local groups.

An agency official would prepare a "Section 106 report" that identifies historic properties, assesses impacts, and makes a determination on next steps; this Section 106 report would then be circulated to State Historic Preservation Officers, Tribal Historic Preservation Officers, and all relevant consulting parties — including project proponents — who would have an opportunity to comment on the findings. The agency official must only review those comments; officials have no obligation to respond to or incorporate any of those comments before issuing the final decision, shifting Section 106 from its previous consensus-seeking exercise to one where the agency official simply decides.

The new regulations also remove vast swaths of our history from protection. To be considered a historic property, the new regulations say it must include, or have included, tangible human improvements – built structures – AND the historic property must be geographically compact. This change in definition will exclude entire categories of historic places from meaningful consideration under Section 106 in the future, including battlefields like Gettysburg or the Little Bighorn, cultural landscapes like Devil’s Tower in Wyoming or the Black Hills in South Dakota, archaeological resources like petroglyphs in Chaco Canyon. It lessens protection on places like the Grand Canyon, simply because they are not “geographically compact” or centered on a building or other structure.

The new regulations specifically preclude "noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes" — locations that carry great spiritual and historical meaning to American Indian groups. Many traditional cultural places and sacred sites of deep religious and cultural significance to Tribes, Native Hawaiian organizations, and local communities will automatically be excluded from consideration for protection by the new regulations.

The changed definition of "historic property" in the new regulations will remove protections for 99% of American Indian heritage and could result in the erasure of the heritage of an entire group of people in the United States – those who lived here before European colonization.

Mitigation, or trying to prevent, minimize or offset any damage to a historic site, becomes a “maybe,” as the federal agency undertaking the project decides whether the "value" of the property is worth the cost of mitigation. "Reasonable mitigation" is redefined so that federal agencies only have to consider measures to lessen the impact of a project on a historic property if they are "technically and economically feasible."

The new regulations water down the definition of what is considered to be an "Adverse Effect" on historic properties so that they are close to meaningless. By removing indirect and cumulative effects on historic properties and eliminating the visual, atmospheric or audible elements that diminish the experience at a property, the new regulations could say that building and operating a casino or amusement park on Mount Vernon would not be considered an Adverse Effect.

Additionally, agencies will not be required to avoid or minimize adverse effects. They can simply document that “other considerations outweigh” historic preservation and proceed as they wish.

Advocates of the new regulations argue that the existing regulations for protecting historic places slow down projects and make economic development more expensive than necessary. They say these new regulations create a system that allows industry to plan better with more precise information, and the processes and procedures are better explained. They argue that the narrower definitions and expanded exemptions could mean faster, more predictable reviews. In reality, however, the rules that are already in place seek to balance the need for economic development with the need to protect the fabric of America’s heritage.

I remember urban renewal and its impact on Oklahoma City in the early 1960s, as large, beautiful buildings in the downtown area were bulldozed to rubble and hauled away so that new, shiny structures could replace them. I remember entire neighborhoods of working-class people being leveled so that an Interstate highway could be constructed through the center of town to let millions of people speed through without having to see the “urban blight” that was erased. I remember, too, the historic properties that disappeared under the developer’s bulldozers and graders.

Those memories are fading fast, I must admit, and the historic properties are long gone. The National Historic Preservation Act was established to help prevent the destruction of the property of economically weaker groups of people at the behest of the economically strong without some level of consideration of the heritage under threat by construction; the Section 106 regulations grew out as a result of that time and has been seen to be a good compromise between economic development and economic justice.

The new regulations serve to weaken everything that has worked about Section 106 for the last 50 years so the federal government has the power to quickly green-light industry's ground-disturbing projects without considering the impact of its actions on America’s heritage. Agencies may proceed as they wish, since the new regulations mute the voices of states, tribes, and local communities who are at the forefront of identifying and protecting American heritage.

The new regulations are currently under review with the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget.

There is a chance that the administration will use a rushed rulemaking process that bypasses public comment, meaning the regulations will take effect when published.

But bringing visibility to the proposed changes could potentially forestall that, and so people who are concerned should contact their local congressional representatives to tell them the changes are a threat to all American's heritage.

If these changes are not stopped, our children will hold us accountable for letting our shared heritage be erased merely for the convenience and benefit of a few.

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