Once upon a time, August in Washington was quiet. Hot and humid, to be sure, but quiet.
Members of Congress would leave town for their home districts or vacation homes. The President would fly off to Martha’s Vineyard or a ranch someplace for R-and-R. And all the worker bees who make the nation’s capital run – government employees, Hill staff, lobbyists, reporters – would enjoy business casual attire and work-from-home Fridays.
Not anymore. While Congress has indeed left town, and most everyone works from home these days, our social media-fueled, round-the-clock, supercharged partisan environment means no rest for those who work in, or care about, federal policy.
That’s certainly the case for those committed to historic preservation. Following the ACHP’s sudden announcement of a radical overhaul of the 800 regulations that implement Section 106 in late July, the preservation community has mobilized in almost unprecedented fashion to fight back. With the possibility that the proposed changes could be out for public comment any day now, those dog days of August will have to wait.
Here’s where things stand: After the Council approved the changes on July 24, they sent the proposal to the White House Office of Management and Budget (OMB) for review. OMB has reportedly asked other federal agencies for their feedback, after which OMB will greenlight publication of the proposal or send it back to the ACHP for revisions.
Once that process is complete, the Council will publish a notice of proposed rulemaking (NPRM) in the Federal Register and invite public comments for a set period of time (the Council has suggested 30 days, the legal minimum).
The moment that NPRM is published, ACRA will review the proposed rule, including any revisions from the current proposal, and share with its members information on how to comment. It is absolutely essential that everyone – and we mean everyone: every firm, every employee, subcontractors, vendors, your great-aunt in Boca Raton – comment. ACHP is required by law to read the comments; while they don’t have to agree with them, the courts have ruled that agencies need to explain their reasoning in accepting or rejecting changes.
Keep an eye out on ACRASphere and social media for information once the NPRM is published.
The public comment period is only one plank of ACRA’s response to this harmful and ill-conceived proposal. ACRA staff and members are engaging with key congressional champions to discuss potential Hill action. ACRA has asked for a meeting with OMB to discuss the proposal’s effects on firms. We are in constant communication with preservation partners, law firms and others to coordinate strategies. And while legal action against the changes could only commence when and if the ACHP publishes a final rule, ACRA and its partners are exploring all options.
Last week ACRA launched its Section 106 Action Center, which features resources about the proposed rule changes and ways that you and your colleagues can take action. The Action Center will be continually updated with new resources and information, including (but not limited to) action alerts, issue briefs and talking points, and all blog posts related to the issue. Note: the Action Center is members-only, so you will be required to login using your ACRA profile. Non-members: subscribe to the ACRAsphere for the latest as resources for all will be cross-posted.
Congress Heads Home with Permitting Reform in Limbo
Even as the ACHP rushes headlong in attempting to rewrite the Section 106 regulations, members of Congress have missed their self-imposed deadline for unveiling a comprehensive permitting reform bill.
A group of Senators from both parties have been negotiating the broad outlines of a bill that would make changes to NEPA, NHPA and other environmental legislation to accelerate permitting. While some hoped they would be able to announce an agreement before the August recess, that timetable has been pushed back to the fall.
Part of the reason: the ACHP’s proposal, as well as the Trump administration’s opposition to renewable energy projects, are making Democrats leery. As Sen. Martin Heinrich (D-NM), the top Democrat on the Senate Energy and Natural Resources Committee, told E&ENews last week, “the White House has been a consistent problem for creating the kind of consensus or relative consensus you need to actually get something passed in Congress.”
Even if Senators reach an agreement in September, the likelihood of Congress enacting permitting reform this year is small. With few days in session between now and the election, there is not a lot of time to draft, debate and vote on a bill that could receive majority support in both chambers. Any bill would need the backing of at least seven Democrats in the Senate to overcome a filibuster; but such a bill also would need to muster support from the more conservative House majority.
That does not mean this year’s work is for naught. Even if Congress cannot pass a bill in 2026, there is a good chance the parties will pick up where they left off in 2027, albeit with one added unknown: we don’t know which party will control Congress next year, which could mean new directions.
Regardless of how the discussions go, ACRA and its preservation partners are engaging with lawmakers from both parties to reiterate the importance of Section 106 and ways that Congress can improve it without endangering historic properties.
FAA Proposes Potential Waiver of NHPA, NEPA for Commercial Space Activities
The Federal Aviation Administration (FAA) has proposed changes to its regulations governing commercial space licensing to “streamline the licensing process and reduce regulatory burden for applicants.”
The FAA’s notice of proposed rulemaking (NPRM), issued July 30, would invoke the Secretary of Transportation’s statutory authority to waive requirements of federal laws of the U.S. for a license or permit when the requirement is not necessary to protect the public health and safety, safety of property, and national security and foreign policy interests of the United States.
The NPRM proposes that provisions of 13 laws – including NHPA and NEPA – could be waived in the context of licenses to operate launch and reentry sites, experimental permits, and licenses to operate a launch or reentry vehicle.
The agency is accepting comments on their NPRM until August 31.
FRA Proposes New Compliance Process for High Speed Trains
The Federal Railroad Administration (FRA) has published an NPRM proposing to amend regulations in order to address the unique noise emission characteristics of trains operating at speeds exceeding 160 miles per hour (mph).
Their proposal, published Auguist 3, would provide an alternative standard for noise emissions from train operations operating from 160 mph to 220 mph and provide a special approval process for noise emissions from train operations exceeding 220 mph. FRA states that the alternative noise emission standard and compliance process “would effectively remove an existing regulatory barrier to the railroad industry for high-speed rail operations, while continuing to protect public health and welfare.”
In its NPRM, FRA states that it has “determined this undertaking has no potential to affect historic properties” and that the rulemaking “does not approve a project resulting in a use of a resource protected by section 4(f).”
The agency is accepting comments on their NPRM until October 2.