Advisory Council on Historic Preservation401 F Street NW, Suite 308Washington, DC 20001

Re: Opposition to Proposed Rewrite of 36 C.F.R. Part 800

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of Proposed Rulemaking regarding amendments to 36 C.F.R. Part 800.

Dear Members of the Advisory Council on Historic Preservation:

Latinos in Heritage Conservation (LHC) respectfully submits this letter in strong opposition to ACHP's proposed rewrite of 36 C.F.R. Part 800. As the national nonprofit organization dedicated to preserving and protecting U.S. Latinx historic places,  LHC is deeply concerned that the proposed rewrite of 36 C.F.R Part 800 will harm communities and fundamentally weaken Section 106 by stripping away preservation groups and the public of “consulting party” status with agency-centered decision-making, narrowing the definition of protected historic properties, reducing public participation, and making avoidance, minimization, and mitigation more discretionary than meaningful. with agency-centered decision-making, narrowing the definition of protected historic properties, reducing public participation, and making avoidance, minimization, and mitigation more discretionary than meaningful.

For Latinx communities across the United States, Section 106 is one of the few federal tools providing visibility to places that have long been excluded from formal preservation systems. Many Latinx historic places are not monumental in architecture or extensively documented in conventional historic preservation methodologies. They may instead derive significance from patterns of migration, Indigenous landscapes, labor, civil rights organizing, religion, cultural practice, vernacular architecture, and multi-generational community use. Because of that reality, any rule that narrows what qualifies as a historic property or compresses opportunities for consultation will predictably harm Latinx heritage sites that are already under-identified and under-protected.

The proposal's restructuring of the Section 106 process around a single agency-authored "Section 106 report" is particularly troubling. The draft Notice of Proposed Rulemaking (NPRM) states that the agency official would prepare one document identifying historic properties, assessing impacts, and deciding what should be done, then circulate it to the ACHP, SHPO, or THPO, and consulting parties for comment before issuing a memorandum of decision. This proposal would turn consultation from a step-by-step collaborative process into a system in which Tribes, SHPOs, THPOs, local governments, and other consulting parties are largely reacting to conclusions the agency has already reached. That shift undermines the very structure that makes Section 106 effective: early engagement with people and institutions whose lived experience and knowledge are essential to identifying community-defined places before irreparable harm occurs.

This concern is especially critical for sacred Tribal historic and cultural lands and for landscapes significant to Indigenous, Afro-Latinx, and other BIPOC communities. The draft NPRM proposes revising the definition of "historic property" so that it must include, or previously have included, tangible human improvements or specific human activities, and must also be geographically compact. It also proposes narrowing the definition of "area of potential effects" to direct effects, adding a materiality threshold to "effect," and revising "adverse effect" to remove indirect and cumulative effects while limiting consideration to effects with a reasonably close causal relationship to the undertaking. Those changes threaten culturally significant landscapes, sacred places, pilgrimage and migration corridors, culturally traditional land use areas, and community heritage geographies whose importance may not be reducible to compact boundaries, surviving built fabric, or direct physical alterations alone.

LHC is particularly alarmed by the implications for Tribal Nations and Native Hawaiian organizations. The draft NPRM states that it would remove detail on Tribal consultation recommendations from the regulations while asserting that underlying federal responsibilities would remain. Yet this raises serious concern that the proposal would diminish consideration of places important to Tribes for religious and cultural significance, especially where harms arise through setting, visual change, access, or other nonphysical effects that are central to sacred and cultural landscapes. Sacred Tribal lands cannot be adequately protected by a framework that discounts the integrity of setting, atmosphere, audibility, access, and broader cultural relationships to land, and those determinations should be informed by Tribal Nations and Native Hawaiian organizations themselves, consistent with federal trust responsibilities and consultation obligations. Weakened Tribal consultation would also jeopardize shared borderlands and Indigenous-Latinx heritage, because many of the places LHC documents, including acequias, land grants, morada traditions, and cross-border sacred sites, are simultaneously Indigenous, landscape-scale, and use-based. Eroding the Section 106 provisions that require early and meaningful Tribal consultation would therefore strip protection from exactly the places where Indigenous and Latino heritage overlap most powerfully.

The proposed elimination or reduction of public participation is also unacceptable. The draft NPRM expressly proposes making public comment optional rather than mandatory in the Section 106 process. This would mean that preservation organizations and interested members of the public would no longer be recognized as consulting parties, and that local governments would no longer be entitled to consult. For historic Latinx communities, where heritage recognition has often depended on grassroots advocacy rather than traditional institutional acknowledgment, optional public involvement is not an administrative refinement; it is a direct threat to equitable preservation outcomes for Latinx heritage.

The proposal's treatment of exclusions from review would create further risks. According to the draft NPRM, the revisions would encourage additional exemptions and process off-ramps comparable to NEPA categorical exclusions, as described in the NPRM's discussion of streamlining tools and broader use of program alternatives, and would revise the definition of "undertaking" to exclude state, Tribal, and local permits issued under delegated federal authority. NCSHPO likewise warns that broad categories of federally connected actions could be removed from Section 106 review altogether. In practice, that means many places significant to Latinx and BIPOC communities may never be identified before approvals are granted, particularly in neighborhoods already facing infrastructure expansion, industrial siting, climate adaptation projects, and redevelopment pressure.

LHC is also concerned that the proposal reframes resolution of harm in a way that weakens accountability. The draft NPRM would replace the current emphasis on negotiated memoranda of agreement with a memorandum of decision process centered on unilateral agency judgment, and it expressly seeks comment on whether the MOA process should be retained at all. Under this approach, mitigation becomes discretionary, and agencies may decide that other considerations outweigh preservation concerns without the same collaborative commitments currently embedded in Section 106 practice. For vulnerable heritage places associated with communities that have historically lacked political power, that is not streamlining; it is a formula for disposability.

LHC urges ACHP to withdraw this proposal in its entirety. Any future rulemaking should instead preserve guaranteed and meaningful consultation with Latinx, BIPOC, and local communities, Tribes, Native Hawaiian organizations, SHPOs, THPOs, local governments, community-based organizations, and the public; maintain definitions broad enough to protect cultural heritage landscapes, sacred places, and community-defined historic properties; retain consideration of indirect, visual, atmospheric, audible, and cumulative effects; and preserve binding mechanisms for avoidance, minimization, and mitigation.

The United States cannot meet its preservation responsibilities by adopting a regulatory structure that makes already marginalized histories harder to identify and easier to discount and demolish. For Latinx heritage, and especially for places that overlap with Indigenous histories, working-class built heritage, cultural landscapes, migration routes, barrios, and sacred Tribal lands, the proposed rule would deepen long-standing inequities in recognition and protection. ACHP should reject this proposal and reaffirm that Section 106 remains a meaningful safeguard for the full diversity of the nation's historic and cultural heritage.

Thank you for your consideration.

Sehila Mota Casper Executive Director Latinos in Heritage Conservation