Hearings to examine the Section 106 consultation process under the National Historic Preservation Act.

Committee on Energy and Natural Resources

2025-10-29

Source: Congress.gov

Summary

This hearing focused on examining the consultation process under Section 106 of the National Historic Preservation Act (NHPA) to ensure it fulfills its intended role while enabling necessary development projects to proceed efficiently[ 00:22:47-00:23:24 ]

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. Witnesses discussed the balance between preserving historical and cultural heritage and preventing unnecessary delays in infrastructure development[ 00:24:03-00:24:10 ]

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. The discussion aimed to identify challenges, best practices, and potential reforms for a more predictable and effective process.

Themes

Challenges and Inconsistencies in Section 106 Implementation

The Section 106 consultation process has become "sprawling, unpredictable," and akin to a "maze without a map," leading to confusion and delays for agencies, developers, and preservation officers[ 00:24:48-00:25:10 ]

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. Key terms like the "Area of Potential Effects" (APE) are broadly defined and inconsistently interpreted across different federal agencies, staff, and consultants, causing significant uncertainty. This ambiguity can delay projects for months or even years, especially those with limited construction windows. Examples cited include solar projects in Washington and Nevada, and energy infrastructure in Michigan, experiencing years of delays[ 00:25:18-00:25:58 ]

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. Furthermore, the reliance on subjective assessments of "indirect effects" and "traditional cultural properties" can broaden the scope of review beyond direct impacts, further complicating and delaying projects. The process is also perceived as ungodly expensive and a significant time consumer.

Importance of Historic Preservation and Meaningful Tribal Consultation

The National Historic Preservation Act aims to ensure federal projects consider impacts on historic properties, safeguarding America's historical artifacts and heritage[ 00:22:47-00:22:52 ]

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. This includes protecting places of genuine historical value and cultural significance, which are crucial for understanding national identity[ 00:24:19-00:24:25 ]

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. For tribal communities, Section 106 is vital because it mandates the U.S. government to consult with tribes before federal actions disturb places of historic, cultural, and spiritual importance[ 00:45:26 ]

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. Consultation reflects a legal duty and government-to-government relationship, ensuring tribal input is considered, although it does not grant tribes a veto power. The Pueblo of Acoma, for instance, emphasizes that their culture, language, and way of life are tied to ancestral landscapes, making the protection of these places essential for their survival and the vitality of their traditions[ 00:45:11-00:45:16 ]

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.

Solutions and Best Practices for Efficiency

Several solutions and best practices were proposed to streamline the Section 106 process. Early and meaningful engagement with tribes and stakeholders is critical, as demonstrated by the "Acoma Model" where project proponents worked directly with the Pueblo, leading to efficient project completion and cultural resource protection. Investment in digital workflows and comprehensive databases, like Utah's system with 270,000 historic resources, can significantly reduce review times and improve predictability[ 01:40:05-01:40:10 ]

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. Utilizing programmatic agreements allows routine undertakings to be streamlined into agreed-upon processes, preventing delays for common projects. Furthermore, defining clear expectations upfront for specific types of projects (e.g., geothermal, solar) through proactive agreements can help standardize the process and prevent inconsistent outcomes. Increased funding and dedicated staffing for Tribal Historic Preservation Offices (TIPOs) and State Historic Preservation Offices (SHPOs) are also crucial, as limited resources force triage of projects and can be misinterpreted as delays.

Tone of the Meeting

The tone of the meeting was largely constructive and bipartisan, with a general consensus that Section 106 serves an important purpose but its implementation needs improvement[ 01:03:45-01:03:48 ]

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. While there was frustration expressed over project delays and increased costs, particularly from industry representatives, there was also a shared commitment to preserving historic and cultural heritage[ 00:24:22-00:24:25 ]

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. Speakers from different backgrounds—a state historic preservation officer, a utility company manager, and a tribal historic preservation officer—each highlighted specific challenges and offered practical solutions, contributing to a collaborative search for balance and efficiency[ 00:38:57 ]

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[ 00:44:24-00:44:39 ]

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. There was a clear call for better coordination among federal agencies and adequate staffing to avoid bottlenecks in the permitting process[ 01:42:26-01:42:41 ]

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Participants

Transcript

The committee will come to order.  Good morning and welcome.  At today's hearing, we're going to examine the consultation process that takes place pursuant to Section 106 of the National Historic Preservation Act, or NHPA.  Congress enacted the statute in 1966 to ensure that the federal government would give due consideration to preserving America's historical artifacts with appropriate stakeholders.   This section of NHPA is itself purely procedural, and as such, it requires government officials to undertake a specific process but doesn't mandate any specified outcome.  In that regard, it's similar to the National Environmental Policy Act, or NEPA, which directs a process, not a result, and which the Supreme Court recently, in its seven-county decision, returned   to a right-sized role in federal policymaking.  Today, we'll consider the scope of Section 106 of NHPA to ensure that it plays the role that Congress intended when NHPA was enacted.  We'll be hearing from three witnesses today to better understand these issues.  They are, first, Dr. Chris Merritt, the State Historic Preservation Officer for the State of Utah.  Second, Mr. Andy McDonald,   the Environmental Compliance Manager for Montana Dakota Utilities Company, and finally from Mr. Stephen Concho, the Tribal Historic Preservation Officer for Pueblo of Acoma.  Welcome to each of you.  When a law written to protect our past starts to block our future, it can be worth examining where we are.   and how we got here and how we might find a better balance and a better way forward.  The National Historic Preservation Act was written in 1966 to prevent places of genuine historical value from being wiped out before anyone even had the chance to speak up or to identify a relevant consideration.
Few if any would dispute that purpose.  We ought to protect the places that show where we came from and who we are.  But over the years,   A narrow procedural safeguard has evolved into a sprawling, unpredictable process that now delays some of the very projects our country needs to build and maintain that story.  Section 106 has within it a consultation process that has become more like a maze without a map.   Agencies, developers, and even preservation officers often don't know where the boundaries lie or how long the path will be.  That confusion is showing up all over the country, and the uncertainty it sows has consequences for everyone.  The Royal Slope Solar Project in Washington is now three years behind schedule.  The Bonanza Solar Project in Nevada has been under construction for nearly three years.   Cape Wind and Vineyard Wind projects in Massachusetts each faced long delays before they could move forward.  The Great Lakes Tunnel project in Michigan, which would improve an important energy link across the Upper Midwest, has spent years caught in back-and-forth reviews.  Ironically, this project began because the state insisted the existing pipeline was unsafe and that it needed to be buried for protection.   But once the tunnel was proposed, the area of potential effects, as the statutory language directs us to inquire into, became so broad that every step triggered a new consultation.  That, in turn, broadened the scope, and the broadened scope has added roughly four years to the schedule of the project.  In Oregon, the Department of Forestry used most of its planning funds on heritage surveys required under Section 106   Instead of the wildfire work, those dollars were meant to support.
These are not just the priorities of one particular political party or another that we're talking about.  This affects projects all over the country, supported by people of many, many different backgrounds.  They include solar and wind projects that my friends on the other side of the aisle would very much like to move forward.  And yet they all run into the same consultation process   that has grown so broad and at times inconsistent that it hinders and in some cases outright blocks projects, even though they may enjoy support from both political parties and from people at every point along the ideological continuum.  My home state of Utah has shown how we can recalibrate and achieve a balance acceptable to everyone.  Our State Historic Preservation Office has digitized records created   clear expectations, and kept consultation moving efficiently.  Utah protects what is genuinely historic while allowing much-needed projects that will benefit its citizens to move forward in a timely manner.  A law meant to safeguard our shared national heritage should not become an instrument of paralysis.  Congress can preserve what's worth remembering without turning every permit into an archaeological expedition.   The purpose of this law is and was always to protect what matters, not to make action impossible.  Preserving our heritage should help us build wisely, but it should not and must not keep us from building at all.  That is the balance this hearing is about.  That's the type of balance we're hoping to be able to find.  Exploring ways to protect the story of where we've been   without making it impossible to build what comes next.  And now the chair recognizes the ranking member, Senator Heinrich.

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