Understand
the changes

Today: Section 106 can recognize more than buildings and structures. Historic resources can include sites, districts, archaeological resources, traditional cultural places, and landscapes that are eligible for the National Register of Historic Places. A place does not need to contain a building to qualify. A natural place such as a mountain, valley, or body of water can potentially qualify when it has historic, cultural, or religious significance and meets National Register requirements.

Proposed: The definition of what qualifies as a historic “property” would become narrower. A place would need to be geographically compact and either include or have included tangible human improvements or have been the location of specific human activities. The proposed regulations specifically state that noncompact, unimproved natural features such as mountains, valleys, bodies of water, landscapes, and ethnographic landscapes would not qualify as property.

What that could mean in Colorado: Imagine a Colorado mountain that has been sacred to a Tribe for generations. Today, that mountain can potentially be recognized as a historic property even though nobody built a building on it. Under the proposed definition, if the mountain is considered too geographically broad and has not been physically improved, the mountain itself could no longer qualify as a historic property. If a federally permitted transmission line, mine, highway, energy project, or other federal undertaking could affect it, Section 106 might never require the federal agency to consider the mountain as a historic property in the first place.

Today: Section 106 requires federal agencies to consider more than whether a project physically damages a historic resource. Negative effects can include changes to its setting or the introduction of visual, atmospheric, or audible elements that diminish the characteristics that make the resource historic. When those effects apply, they must be considered as part of the Section 106 review.

Proposed: The regulations would remove the current language specifically identifying changes to a historic resource’s setting and the introduction of visual, atmospheric, or audible elements as examples of negative effects. The proposal would also narrow the area examined for effects toward direct material alterations.

What that could mean in Colorado:

Views: A federally regulated cell tower proposed along the Santa Fe National Historic Trail could negatively affect historic views even though it never physically touches the trail. Today, those visual effects must be considered when the views and setting contribute to the trail’s historic significance.

Noise: A federally funded highway expansion could substantially increase traffic noise through a historic neighborhood without demolishing a single historic building. Today, that audible effect must be considered when it diminishes characteristics that make the district historic.

Setting: A federally approved transmission line could introduce large towers and infrastructure into the landscape surrounding a historic district while leaving every historic building untouched. Today, the negative effect on the district’s historic setting must be considered when that setting contributes to its historic significance.

The buildings may still be standing. But the setting that makes the place historic could be changed forever.

Today: Section 106 requires meaningful consultation throughout the review process and establishes who must be included. State and Tribal Historic Preservation Officers, Tribal Nations, local governments, applicants, and other consulting parties bring expertise and knowledge that a federal agency may not have. The public must also be given opportunities to provide input.

These participants help identify historic resources, evaluate how they could be affected, raise concerns, consider alternatives, and work toward solutions. Their involvement begins while the review is underway and while there is still an opportunity to influence the project. When negative effects are identified, the federal agency must consult with other parties to try to reach agreement on how those effects will be addressed.

Proposed: Federal agencies would have greater control over who participates, when consultation occurs, and how input is considered. Some parties that have a defined role under the current regulations would no longer have the same required role in the process. The agency could conduct more of the review itself, including identifying historic resources, evaluating effects, and developing a proposed response, before providing its analysis to consulting parties for comment. Public participation would also become more discretionary.

This changes more than who gets to speak. Consulting parties often provide information that is not available in federal records. Bringing that knowledge into the process early can identify resources or concerns before decisions are made and while alternatives are still possible.

There is a difference between having a seat at the table and commenting from outside the room.

Today: When a federal project will negatively affect a historic resource, the federal agency must consult with other parties to try to resolve that effect. Together, they consider ways to avoid, minimize, or mitigate the harm.

When an impact cannot be avoided, mitigation can help offset that effect. This might include changing the project to reduce the impact, documenting what will be lost, funding preservation of another historic resource, supporting archaeological research, or investing in another preservation project that benefits the affected community.

The federal agency still makes the final decision, and Section 106 does not require a project to stop. What it requires is an effort to find a solution before the project moves forward.

Proposed: That requirement would change. If a federal agency identifies a negative effect, it would no longer be required to work with consulting parties to try to reach an agreed solution. Mitigation would not be required. The agency could determine for itself how to address the effect and allow the project to move forward.

What that could mean in Colorado: When the National Park Service acquired the historic McGraw Ranch in Rocky Mountain National Park, the agency planned to tear down the ranch buildings. Section 106 consultation gave Estes Park residents and the National Trust for Historic Preservation a way to make the case for saving the former guest ranch. Opposition from local communities convinced the Park Service to convert the ranch to a research facility. Park crews and volunteers restored the buildings, with park gate fees contributing $1.2 million to the work. Today the ranch houses scientists studying the park. The Park Service met its need for facilities, while a piece of Colorado’s ranching history was preserved.