The Army’s Program Comment for Warfighting Readiness and Associated Infrastructure is not just another technical proposal for modifying Section 106 procedures. It is a bellwether: how the Advisory Council on Historic Preservation (ACHP) responds at their business meeting on February 12th will signal whether federal preservation law still has independent force, or whether agencies may now rewrite their obligations whenever consultation becomes inconvenient.
The Program Comment begins with an extraordinary premise: that the historic resources that really matter are the Army bases themselves; that since they are active bases, no changes to the bases can be an adverse effect; and that the Section 106 process itself damages historic resources by slowing changes to the bases. It claims that project-by-project review “compromises and diminishes the integrity” of military landscapes, because consultation may delay, modify, or halt projects. In other words, historic preservation is now anti-preservation, and black is now white.
This premise ignores, of course, the tens of thousands of years of pre-Army history, the vast majority of the archaeological sites on Army bases. Preserved under large base foot prints are all eras of history: Indigenous rock art, quarries, settlements, burial sites, and landscapes; early colonial settlements; rural farmsteads; mines and industrial sites; the buildings and cemeteries left from the communities displaced by the Army to build these bases. According to the Program Comment itself, the Army controls over 14 million acres of land in the United States containing 122,000 buildings and 84,000 archaeological sites, yet the diversity and significance of these historic properties are concealed in the very document that will determine how and whether they are managed.
From this flawed premise flows the Program Comment’s most dangerous feature: it proposes to eliminate consultation with State Historic Preservation Officers and the ACHP altogether for all “warfighting readiness activities and associated infrastructure.” The Army would become the sole authority determining what is historic, what is significant, what constitutes harm, and what mitigation—if any—is appropriate. And warfighting? It is defined so broadly as to mean everything the Army does. Tribes, while elevated in the Program Comment as requiring a government to government relationship and having unique Indigenous Knowledge, are also severely disadvantaged by this complete reorientation of preservation priorities. How, in fact, are Tribes meant to consult on these issues when the underlying system might never identify a site or building as a historic property worth evaluating?
This proposed change is not effective and responsible streamlining; it is the fox in charge of the henhouse.
Historic preservation law is intentionally built on external review, because federal agencies are not neutral decision-makers about their own projects. Congress created a system that relies on SHPOs, Tribes, consulting parties, and the ACHP precisely to ensure that preservation decisions are informed by expertise and perspectives outside the regulated agency. This system prevents the few Army cultural resources staff, whose positions are supervised by the Army leadership proposing these projects, from being the sole individuals reviewing their impacts to historic properties. Instead of pursuing a limited carve out for well understood projects with minimal impacts, as Program Comments are intended to do, the Army’s new approach would dismantle that system.
If the ACHP approves this Program Comment, this approach will not remain confined to the Army. Not only are the Army and ACHP openly musing about using this Program Comment for other branches of the Department of Defense, but other federal agencies will look to this development to see a clear roadmap: redefine your mission as a category of undertakings, declare that consultation interferes with that mission, replace public review with internal decision-making, and call it “streamlining.” The Army is testing whether the ACHP will allow Section 106 to be transformed from an enforceable legal process into a discretionary internal policy.
For that reason alone, the ACHP should reject the Warfighting Program Comment in its entirety.
What’s next and how can you help?
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- Reach out to the ACHP before February 12th and share your concerns about the Army Warfighting Program Comment.
- Attend the ACHP’s February 12th business meeting in DC to show public concern over the Program Comment and the proposal to open the Section 106 implementing regulations.
- Read the comment letters from the National Trust for Historic Preservation, Nansemond Indian Nation, Washington Department of Archaeology & Historic Preservation; the Virginia Department of Historic Resources, National Association of Tribal Historic Preservation Officers, the American Cultural Resources Association, and Choctaw Nation to view other serious concerns about the Program Comment.
- If you know of ongoing consultations on important archaeological sites or historic properties on Army bases – stay engaged with the process, and alert us if the Program Comment goes into effect and ends important discissions regarding cultural resources impacts.
- Speak publicly in op-eds and about the risks to important buildings and sites if the Army implements this Program Comment.
- If you are seeing cases of historic preservation damage or disturbance and are wondering about legal options, 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 Section 106 war room page.