Department of Interior Issues New Section 106 Consultation Policy

The changes to cultural resources review and consultation procedures are increasing. The Department of Interior (DOI) issued Secretarial Order (SO-) 3452 on August 20, 2026, which establishes new requirements for how DOI bureaus conduct consultations under Section 106 of the National Historic Preservation Act. This policy change is effective immediately for DOI and is separate from the Advisory Council on Historic Preservation effort to revise the government-wide Code of Federal Regulations Title 36, Part 800 (36 CFR Part 800) regulations underway since July 24, 2026 (see the sidebar for the difference between the policy and regulation).

Context

SO-3452 mostly focuses on shortening Section 106 reviews, but it also limits the use of off-site compensatory mitigation for effects on cultural or historic resources.

If this sounds like déjà vu, it should.

Near the end of the first Trump administration in 2020, DOI issued SO-3389. That SO directed bureaus to employ a variety of acceleration tools, and it also declared that compensatory mitigation as part of Section 106 consultations was “disfavored.” SO-3389 was then rescinded in 2021, early in the Biden administration, returning procedures to the prior status quo. In December 2024, after Trump was elected to a second term, Environmental Science Associates (ESA) forecasted that the incoming administration would move quickly to reinstate some version of SO-3389. Twenty months later, SO-3452 delivers on that prediction but with some important differences.

Summary

The “streamlining” components of SO-3452 direct DOI bureaus in several forms.

a. Identify categories of undertakings with no potential to cause effects. The existing 36 CFR Part 800 regulations specify that undertakings with no potential to cause effects are not subject to Section 106 obligations. Federal agencies have exercised this discretion for decades, routinely making these determinations without consultation. Now each bureau is required to develop formal lists of undertaking types that meet this definition. The definition may be applied broadly and include types of actions that have previously been considered to have some potential to cause effects. The lists must be vetted by the DOI, formally adopted, and adhered to within 60 days. 

Regulations vs. Policy – What’s the Difference?

Regulations carry the force and effect of law and are developed by agencies that have been delegated rulemaking authority by Congress in certain cases. Development of regulations can be time consuming because the process must follow public notice and comment requirements in the Administrative Procedure Act (APA).

Policies, on the other hand, do not carry the force and effect of law, but are used because executive agencies can develop and use them very quickly. This is because public notice and comment requirements under APA are not required when policies affect only agency management or personnel, or when agencies determine that robust public engagement is either impracticable, unnecessary, or contrary to the public interest.

For a detailed overview in the difference between federal regulations and policy, please see An Overview of Federal Regulations and the Rulemaking Process.

b. Develop new Section 106 exemptions. The existing regulations already provide for exemptions as a risk-management approach to compliance, allowing certain undertakings with the potential to cause effects to be exempted when those effects are expected to be minimal. These exemptions are unevenly developed and rarely used in some bureaus. By October 20, 2026, (within 60 days of SO-3452), bureaus must propose new exemptions, and DOI will decide which to carry forward through formal development via established program alternatives, such as a Section 106 Programmatic Agreement.   

c. Adhere to the 30-day response deadlines in the consultation milestones in the regulations. Many federal agencies regularly give consulting parties extensions to provide comments or concur beyond the 30-day deadline provided in the regulations. In accordance with SO-3452, DOI will now require bureau director approval for any extensions; therefore, any extensions will likely become rare.

d. Consolidate steps in the Section 106 process and coordinate with the National Environmental Policy Act (NEPA). These are not new schedule tools. However, given the shortening of NEPA timelines and reduced opportunities for public involvement under NEPA, these shifts in how existing Section 106 procedures are applied could be significant and will require some trial and error as agencies work through implementation. For a previous discussion on the changing NEPA requirements, please see “NEPA Implementation Update.” For a discussion of the challenges with coordinating NEPA and Section 106 due to the changing requirements, please see “Clarifying Differing Federal Obligations for NEPA and Section 106 Compliance.”

e. Set an 180-day timeline to resolve adverse effects and employ termination procedures when appropriate. Current regulations do not prescribe a deadline for resolving adverse effects, but these cases often involve complex and time-consuming multi-party consultation. A 6-month deadline appears reasonable, but it may be difficult for consulting parties to meet. The guidance allows for extensions but also directs bureaus to decide whether further consultation will be productive and decide whether they should “terminate” consultation. Although federal agencies have the authority to terminate consultation, it is exceedingly rare that they invoke that authority. This policy direction suggests that DOI may be more willing to exercise that authority in the future.

The off-site compensatory mitigation aspects of SO-3452 re-establishes DOI’s skeptical view of compensatory mitigation and the new specifics are as follows.

a. Off-site compensatory mitigation cannot be required, is disfavored, and can only be offered voluntarily by a project proponent. The directive goes into detail defining what comprises off-site compensatory mitigation for effects on cultural or historic resources and what does not. It also sets additional policy, making it clear the project proponent has discretion whether to accept off-site compensatory mitigation as a requirement.

There is a potential tension between this policy and the administration’s goal of accelerating major infrastructure projects. When appropriately designed, compensatory mitigation can provide a practical means of resolving adverse effects and shortening Section 106 consultation. By limiting agencies’ ability to rely on off-site compensatory mitigation, the directive may, in some cases, remove a tool that could otherwise help expedite consultation and project delivery.

Implications

These shifts require bureaus to respond quickly on several data calls, creating extra workload that may be difficult to accommodate given substantial staffing reductions. The policy realignment on timelines will take time for agencies to implement correctly while addressing the legal and political considerations in the consultation process. Some of the changes might shorten timelines but the aggressive posture will certainly cast a shadow over important discussions with consulting parties. The disfavoring of compensatory mitigation may also have the unintended consequence of slowing down a narrow but important suite of high-visibility, complex major infrastructure projects.

Lastly, this policy only applies to DOI bureaus and does not apply to actions under the jurisdiction of other federal agencies like the U.S. Forest Service. We have seen similar policy and implementation fragmentation and lack of procedural clarity for NEPA after the Council on Environmental Quality rescinded the overarching NEPA regulations, leaving implementation to new agency-specific NEPA regulations. That change created uneven implementation and confusion on multi-agency projects.

The policy whiplash, in concert with deep staffing cuts, looming regulatory change, and potential congressional action is a perfect storm of uncertainty for how to successfully navigate Section 106 reviews and consultation requirements for all parties. ESA has a cadre of planners, cultural resources specialists, and technical experts who are experienced in working with NEPA and Section 106. Let us know how we can help make sure your policy and/or project interests are represented within this context. Reach out to Tony Overly, Cultural Resources Practice Leader, to get started.