Modernizing Preservation

Congress designed the National Historic Preservation Act (NHPA) in an era of breakneck federal infrastructure development. But now America struggles to build.

The NHPA Section 106 consultation framework functions well for routine undertakings. But it scales poorly for large, multi-state transmission lines, pipelines, and other linear infrastructure. This paper argues that the most persistent challenges in Section 106 review arise from three structural features of the current system.

First, sequencing and path dependency often cause meaningful tribal consultation to occur after major project decisions have hardened. This reduces opportunities to avoid conflicts. Second, fragmented information and administrative coordination distribute responsibility across agencies, tribes, preservation officers, applicants, and courts. Each operates under different authorities, timelines, and informational constraints. Third, Section 106 does not scale well to support linear infrastructure. Coordination burdens grow dramatically as projects cross multiple jurisdictions, sovereigns, and hundreds of miles. Together, these structural dynamics generate uncertainty, increase litigation risk, strain institutional capacity, and complicate infrastructure deployment. They also often leave tribes in a reactive position late in project planning.

Modernizing Section 106 can address these structural mismatches through a framework of earlier engagement and clearer closure. This paper recommends introducing a screening-level phase of engagement earlier in project planning. This would entail early consultation triggers, predictive geospatial screening, broad tribal areas-of-interest mapping, and collaborative routing models that help identify potential conflicts before routing decisions become fixed. Site-specific identification and consultation can still happen in later stages after a project footprint is defined.

The paper recommends reforms that would:

1. Create an earlier, screening-level engagement process for major linear infrastructure. For such projects, Congress should require corridor-level cultural-resource screening at the Notice of Intent or pre-application stage. This screening should identify affected tribes, broad areas of cultural concern, and potential routing conflicts before agencies select a preferred route. This should not entail full archaeological surveys or full Section 106 review across every hypothetical corridor.

2. Pair earlier engagement with clearer closure. Congress should create statutory safe harbors for agencies that follow prescribed notice, screening, documentation, confidentiality, and follow-up procedures. Agencies that satisfy those requirements should receive a rebuttable presumption that they met the “reasonable and good faith effort” standard. Congress should also reduce the time litigants have to bring NHPA claims, make the Record of Decision the final agency action, and limit late-stage injunctions.

3. Apply the same screening logic to the Army Corps’ Appendix C problem. For major linear projects with limited federal touchpoints, agencies should conduct early route-level cultural-resource screening rather than either preserving fragmented crossing-by-crossing review or requiring full corridor-wide Section 106 review. High-risk segments identified through screening should receive focused consultation and identification.

4. Strengthen confidentiality and information-sharing systems. Congress and agencies should protect tribal cultural information through stronger FOIA protections, standardized confidentiality protocols, secure-access administrative records, and limited-access review mechanisms for necessary consulting parties. Agencies should be able to document tribal consultation without publicly disclosing sacred-site information.

5. Build capacity and improve consultation infrastructure. Congress should provide durable funding for State and Tribal Historic Preservation Officers, compensate tribes when they provide expert identification and evaluation services, and support collaborative field-based models such as the Acoma Model. Agencies should also standardize documentation and metadata requirements and develop centralized, searchable records systems, subject to appropriate confidentiality protections.

6. Resolve agency implementation barriers. Congress should mandate lead-agency designation and coordination for multi-jurisdictional linear projects, expand programmatic agreements and program alternatives for repeat infrastructure categories, and create a clear Federal Energy Regulatory Commission exception to ex parte limits for government-to-government tribal consultation.

Together, these reforms would preserve meaningful consultation and historic preservation while durably aligning the Section 106 process with the infrastructure needs of the twenty-first century.