The Advisory Council on Historic Preservation (AHCP) has informed federal agencies, consulting parties and the public that federal agencies should follow the terms of any applicable Section 106 agreement that contains emergency provisions, when such agreements exist, for any proposed undertaking that falls within the scope of President Trump’s Executive Order Declaring a National Energy Emergency. The ACHP further instructs agencies that in the absence of such a Section 106 agreement, they “can avail themselves of the expedited emergency provisions in Section 800.12(b)(2) of the Section 106 regulations.”
In a message to consulting parties this morning, Executive Director Reid Nelson wrote that, “Although the Executive Order does not reference compliance with Section 106 . . . the regulations implementing Section 106 . . . at 36 CFR part 800 acknowledge that activities that respond to a disaster or emergency declared by the President require expeditious review.” The message also notes that, “While Section 800.12 only applies for 30 days following an emergency declaration, pursuant to Section 800.12(d), the ACHP is hereby extending the applicability of the Section 106 emergency provisions to run for the duration of the Presidential declaration.”
The full text of the message is below:
Consulting Parties,
On January 20, 2025, President Trump issued an Executive Order Declaring a National Energy Emergency, in which he declared an energy emergency in regard to the availability of domestic energy resources and domestic energy production, transportation, refining, and generation. In it, he directed agencies to identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess, to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on Federal lands.
Although the Executive Order does not reference compliance with Section 106 of the National Historic Preservation Act, the regulations implementing Section 106, “Protection of Historic Properties” at 36 CFR part 800, acknowledge that activities that respond to a disaster or emergency declared by the President require expeditious review. Accordingly, the ACHP has provided the following information to federal agencies to assist them in implementing the terms of the Executive Order in regard to historic preservation reviews. This information is being shared with consulting parties so they are also aware of the ACHP’s advice.
Consistent with 36 CFR § 800.12(b)(1), for any proposed undertaking that falls within the scope of the Executive Order, agencies should follow the terms of any applicable Section 106 agreement that contains emergency provisions, when such agreements exist.
In the absence of such a Section 106 agreement document, agencies can avail themselves of the expedited emergency provisions in Section 800.12(b)(2) of the Section 106 regulations, which require, prior to the undertaking, the agency to notify the ACHP, the appropriate State Historic Preservation Officer or Tribal Historic Preservation Officer, Indian Tribes or Native Hawaiian Organizations of the undertaking and provide them an opportunity to comment within seven days of notification. Where circumstances allow, agencies are encouraged to consider providing additional time for review and comment, as certain activities addressed by the Executive Order may allow additional time to consider potential effects to historic properties.
Agencies should keep in mind that Section 110(f), 54 U.S.C. § 306107, of the NHPA requires the agency, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any National Historic Landmark (NHL) that may be directly and adversely affected by a proposed undertaking. Where a proposed emergency response undertaking may direct and adversely affect an NHL, the agency should ensure it meets the higher level of consideration required by Section 110(f) in following the expedited Section 106 review process described above. This would include notifying the National Park Service and inviting its comment in the time allowed.
While Section 800.12 only applies for 30 days following an emergency declaration, pursuant to Section 800.12(d), the ACHP is hereby extending the applicability of the Section 106 emergency provisions to run for the duration of the Presidential declaration.
Additional information may be shared by the ACHP as agencies begin to identify emergency actions relating to this Executive Order. The ACHP will also provide updates via email and on its website as needed. Questions can be directed to Jaime Loichinger, Director of the Office of Federal Agency Programs, at [email protected].