Last week’s Senate Energy & Natural Resources hearing on Section 106 didn’t show that the NHPA causes permitting delays. It did, however, signal that threats to Section 106 are coming—and the preservation community needs to stay alert.
What worked at the hearing
Witnesses Dr. Chris Merritt (Utah State Historic Preservation Officer) and Mr. Steven Concho (Tribal Historic Preservation Officer of the Pueblo of Acoma) effectively underscored what we see every day: early, proactive consultation speeds projects and improves outcomes. They pointed to existing tools like Programmatic Agreements, Program Comments, digitization, electronic submission and review of projects, and proactive collaborations with Tribes that already improve Section 106 timelines while protecting historic resources across the country. Committee members (especially ranking member Senator Heinrich and Senator Masto) made the point that the consultation process needs a sufficient, skilled, and stable federal workforce and that SHPOs and THPOs need adequate funding to do their work. Indeed, Senator Masto was stunned to learn the Acoma THPO’s annual federal support is only ~$100,000.
The critiques fell flat
Testimony from Mr. Andy McDonald of Montana-Dakota Utilities Company emphasized that decisions regarding the extent of the Area of Potential Effects (APE) are not consistent between projects and encouraged limitations to the NHPA along the same lines as those decided for NEPA in the recent Seven County Infrastructure Coalition v. Eagle County, Colorado Supreme Court decision, arguing that speculative effects or those separate in time or place from the undertaking should not be reviewed. But Mr. McDonald offered no concrete examples of Section 106 chasing “speculative” impacts, and committee members’ broader critiques of NHPA largely failed to land. There were no major gotcha moments illustrating a project where impacts were tiny and delays were massive. Instead, Dr. Merritt pointed out that around 97% of his office reviews are completed in a few weeks. The truth is that these efficiencies and positive statistics are common across the nation – most SHPOs make an Adverse Effect determination for 3% or fewer of their projects, and many advance projects considerably quicker than the 30-day statutory turnaround time.
But Section 106 is still at risk
Even though the substance of the hearing failed to expose major weaknesses in Section 106 implementation, we see pressure on Section 106 accelerating on two fronts:
Momentum is growing for permitting reform: A Congressional committee does not call a hearing like this unless the majority on the Committee is preparing to write legislation. The Energy and Natural Resources Committee has been working on permitting reform for some time, and it is easy to anticipate legislative language making significant changes to Section 106 as part of a broader permitting reform package. Indeed, the hearing showed bipartisan consensus for improving Section 106– even Senator Heinrich, a stalwart champion for historic preservation and tribal consultation, spoke about possible “tweaks.” Multiple permitting reform bills have already been introduced this Congress, and it is one area where there is enough agreement across the aisle that we could see legislation get across the finish line. Indeed, the National Governors Association this week urged broader permitting changes that would compress NEPA timelines even further and potentially exclude projects with less than 50% federal funding from NEPA review entirely. Many senators on the committee are also part of the newly-formed Stewardship Caucus, a bipartisan group focused on protecting but also increasing access to public lands.
The Administration is acting unilaterally to undercut historic preservation protections: We remain gravely concerned about unilateral federal changes that bypass public notice and comment and ignore legal requirements. We will be watching for:
- Federal agencies limiting Section 106 applicability or process under an Interim Final Rule, as most of the NEPA regulations were rescinded;
- Federal agency staff deficits creating additional delays and pressure for more substantial reforms; and
- The expansion of the use of “emergency” Section 106 procedures for additional types of undertakings.
What to do next
The committee is accepting public testimony on the hearing until Wednesday November 5th at 6pm! Send your comments to fortherecord@energy.senate.gov. Make sure to include the date and title of the hearing (October 29, 2025 — Full Committee Hearing to Examine the Section 106 Consultation Process Under the National Historic Preservation Act) in the title of your email, and include your full name and address in the body of your statement.
Our firm is committed to protecting the nation’s historic preservation program. We’d love to hear from you and learn more about what you are seeing on the ground and your plans to fight back. You can reach out via Signal at marionchp.106 or via email. Follow us on LinkedIn and Facebook for real-time updates, and learn more on our war room page.