Interior Secretary Doug Burgum has issued a Secretarial Order intended to accelerate the Section 106 process.
The Order, “Timely Completion of National Historic Preservation Act Section 106 Reviews” (Order No. 3452), was issued August 20. Its stated purpose is to “streamline reviews under section 106 . . . by utilizing measures consistent with the Section 106 implementing regulations to timely and efficiently comply with section 106 and/or to conclude Section 106 consultations.”
The Order claims, without evidence, that undertakings are “too often delayed by a consultation process that has become far more time-consuming, demanding, costly and complicated than what was contemplated in the statute or the regulations. Consequently, the Department’s Bureaus are forced to unnecessarily extend the decision-making process for undertakings, with little or no benefit.”
The Order issues several directives to Interior’s sub-bureaus:
- Identify categories or types of undertakings with no potential to cause effects. The Order requires bureaus to, within 30 days, “conduct a review to identify categories or types of undertakings that do not have the potential to cause effects on historic properties, assuming that historic properties are present,” with a final list to be disseminated within 60 days of the order.
- Create efficiencies by implementing program alternatives, particularly exempted categories. The Order requires bureaus to “conduct a coordinated review to identify programs or categories of undertakings that meet the criteria” for exempted categories and “continue to identify and pursue Bureau-specific and Department-wide alternatives, as appropriate.”
- Implement existing efficiencies provided for in the regulations. The order directs bureaus to “take full advantage of the efficiencies embedded in the Section 106 regulations,” including:
- Moving to the next steps in the process if S/THPOs do not meet the 30-day deadlines set forth in the regulations (while granting an extra 45 days for THPOs if certain conditions are met).
- Considering consolidating steps in the process, after seeking the concurrence of the S/THPO or appropriate territory official.
- Coordinating the Section 106 process with the NEPA process.
- Setting target dates for “completing Section 106 compliance and employ termination, when appropriate,” calling on bureaus to “strive for a 180-day timeframe during which time the agency official will make a reasonable and good faith effort to resolve the adverse effect with the consulting parties and to afford the Advisory Council the ability to comment.”
- Make offsite compensatory mitigation subject to approval by the bureau head. The Order states that offsite compensatory mitigation is “disfavored as a matter of policy.” The Order clarifies that “[r]easonable funding for the creation of appropriate records to document a historic property that is to be substantially altered or demolished, including costs directly associated with and attributable to the excavation, transportation, curation and storage of appropriate records and materials,” should not be considered offsite compensatory mitigation.
The Order is similar, though not identical, to Secretarial Order 3389, issued during the first Trump Administration in 2020 by then-Interior Secretary David Bernhardt but rescinded by then-Interior Secretary Deb Haaland during the Biden Administration.
ACRA is reviewing the Order to determine its effect on Section 106 reviews and next steps.