For the first time since 2000, the regulations that implement Section 106 of the National Historic Preservation Act are headed for a comprehensive rewrite. This update summarizes where the process stands, what the proposed changes may do, and what to expect over the next several months.
Our team at Chronicle Heritage is tracking these changes closely, and we are available to provide consultation to help navigate this uncertainty.
Why does this matter for your project?
Two practical risks accompany this rulemaking:
- Delay. Projects in consultation now, or starting soon, may encounter uncertainty about which procedures apply if the rule changes while they are underway, or while agencies and consulting parties align on how a revised process works in practice.
- Litigation. Rewrites of long-standing federal review regulations are frequently challenged in court. A legal challenge to this rule, if filed, could affect its status or applicability after it takes effect.
Both risks warrant tracking this process and building schedule flexibility into projects where Section 106 compliance is on the critical path.
How did we get here?
- 2000–2004: ACHP’s current 36 CFR Part 800 regulations were substantially rewritten in 2000, with technical amendments in 2004.
- Early-mid 2026: ACHP began developing a broad revision to Part 800, under a Council-approved review timeline.
- July 17, 2026: ACHP convened an unassembled meeting to vote on a draft Notice of Proposed Rulemaking (NPRM).
- July 24, 2026: ACHP voted to move the draft NPRM forward. This is the redline currently circulating and the basis for this update.
Where do things stand today?
The draft NPRM has not been published and is not yet law. It next goes to interagency review with the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget, a required step before publication in the Federal Register. A formal comment period will follow publication.
What should you expect over the next few months?
Approximate month if each stage moves on an accelerated timeline:
- OIRA/OMB interagency review — August 2026
- Federal Register publication; comment period opens — August 2026
- Public comment period closes — September 2026
- ACHP reviews comments, drafts final rule — November 2026
- Second OIRA review of final rule — December 2026
- Final rule published — December 2026
- Effective date — January 2027
These dates assume an accelerated path at each stage. Standard (non-accelerated) timeframes run longer at every stage, and a final, effective rule is more realistically expected in mid-to-late 2027 or later. ACHP has not published a confirmed schedule for any step after OIRA review. Litigation filed after a final rule is published, discussed below, could further extend the period before the rule is settled.
What would the proposed changes do?
The draft restructures several parts of the Section 106 process rather than making only minor adjustments. Based on our review of the redline:
- Redefined federal actions. The draft adds explicit tests for what counts as an “undertaking” that triggers Section 106 review: actions carried out by or on behalf of a federal agency, third-party actions funded by and under federal jurisdiction, and third-party actions requiring a federal permit, license, or approval. It also limits review to the action or project over which the agency has discretion and control.
- Section 106 Report. Several checkpoints where a State Historic Preservation Officer, Tribal Historic Preservation Officer, or the Council currently has an independent right to review or object to an agency’s findings would be replaced with an agency-certified “Section 106 Report.”
- Discretionary language in place of mandatory language. In a number of provisions, “shall” becomes “may” or “should,” including provisions on public participation and on involving consulting parties in agency findings.
- New categorical exemptions. The draft adds categories of federal involvement that would fall outside Section 106 review entirely, rather than being reviewed on a streamlined basis.
- Revised core definitions. The draft changes how “area of potential effects,” “historic property,” and “adverse effect” are defined.
- Shortened internal timelines. Several internal agency and Council deadlines would be shortened.
Litigation
Several organizations have stated they may challenge specific provisions as exceeding ACHP’s statutory authority under the NHPA or as inconsistent with ACHP’s own rulemaking procedures. The 2020 overhaul of the NEPA regulations, a rewrite of comparable scope to a comparable federal review framework, was challenged in multiple courts shortly after publication.
Whether this rule is challenged, and the outcome of any challenge, will depend on the final rule text and how any litigation proceeds. A final rule should be treated as potentially subject to further change through litigation for some period after it takes effect.
How can Chronicle help clients navigate the proposed Section 106 changes?
Chronicle Heritage is a global cultural resource management (CRM) firm with offices across the United States and decades of experience guiding federal agencies, energy and infrastructure developers, and public- and private-sector applicants through Section 106 of the National Historic Preservation Act. Our technical experts are tracking the Advisory Council on Historic Preservation’s (ACHP) proposed revisions to the Section 106 regulations (36 CFR Part 800) at every stage — the ACHP vote, review by the Office of Management and Budget (OIRA), Federal Register publication, the public comment period, and the final rule and any litigation that follows.
What makes Chronicle a unique partner right now?
- Regulatory foresight, not reaction. Our leadership serves on the board of the American Cultural Resources Association (ACRA) and engages directly in the national policy conversation, so our clients hear what’s coming before it arrives — and plan for it.
- Experience on both sides of the table. We support federal agency clients meeting their compliance obligations and private applicants seeking efficient approvals, which means we understand how streamlined processes actually get implemented, not just what the text says.
- Proven navigation of program alternatives. The ACHP’s April 2026 Program Comment for Army Warfighting Readiness — covering more than 200,000 historic properties — shows where federal compliance is heading: tiered review, standardized treatments, and portfolio-scale management. Chronicle Heritage already works within these frameworks and helps agencies design and implement them.
- Nationwide, state-by-state depth. Because the practical effect of any federal change depends on state law — from CEQA in California to state antiquities codes across the Southwest and Southeast — our geographic footprint lets us chart the most efficient compliant pathway for each project, in each state, under whichever rules apply.
What can we do for your project today?
- Assess your exposure. We review your project portfolio and identify which undertakings depend on which federal triggers, which would be affected by the proposed changes, and which state requirements apply regardless.
- Keep projects moving through the transition. Proposed transition provisions, agency-specific procedures, and pending litigation will create a period where different projects operate under different rules. We help sponsors choose the most advantageous compliant path and keep schedules intact.
- Plan consultation strategically. From Tribal consultation to SHPO coordination to applicant-led early consultation, we design engagement that resolves issues before they become delays.
Frequently asked questions
Are the Section 106 regulations changing in 2026? The ACHP is considering proposed revisions to 36 CFR Part 800. Any changes require public notice and comment before taking effect, and the current regulations remain fully in force today.
Does my project still need Section 106 review? Yes, existing requirements apply until a final rule takes effect, and projects already in consultation are expected to continue under current procedures. Many projects also carry independent state and tribal requirements.
How fast can Section 106 compliance move? With early planning, the right consultation strategy, and complete documentation, most reviews conclude far faster than the worst-case timelines cited in policy debates. Efficient compliance is a design problem, and it’s what Chronicle Heritage does.
Written By Dr. Steve Karacic, President
Chronicle Heritage
This update reflects our understanding of a rulemaking in progress as of July 29, 2026, and is provided for general informational purposes rather than as legal advice. Clients with project-specific compliance questions should consult their Chronicle Heritage technical lead or legal counsel.
