Denver council unanimously opposes proposed Section 106 rewrite

Denver City Council unanimously approved a proclamation Aug. 31 opposing a proposed rewrite of federal historic-preservation regulations. Council members and Historic Denver representatives said the changes could make public participation discretionary and weaken consultation with local governments and Tribal nations.

The vote was recorded as 10 ayes in the official meeting video. The adopted measure was Proclamation 26-1193, although the meeting transcript incorrectly identified it as Proclamation 26-1273; that number belongs to a separate Harm Reduction Action Center contract amendment.

The adopted proclamation urges the Advisory Council on Historic Preservation to withdraw or substantially revise its proposed amendments to the regulations implementing Section 106 of the National Historic Preservation Act. It also encourages Denver residents and preservation organizations to participate in the federal public-comment process.

Councilmember Torres, who moved for adoption, said the proposal would make consultation with officials and cultural-landmark organizations discretionary, weaken public input and leave decision-making power “almost solely with the federal agencies.” Councilmember Sandoval said Section 106, at its best, mandates public engagement.

Historic Denver representatives echoed those concerns. One said the rewrite would make the Section 106 conversation optional and remove communities’ “seat at the table.” Another said it would “eradicate the voice of communities,” Historic Denver and the council.

The rewrite has not yet become a proposed rule. The Advisory Council on Historic Preservation said July 24 that it had voted to advance a draft notice of proposed rulemaking revising 36 C.F.R. Part 800, which governs the Section 106 process. The draft then moved into review by the White House Office of Information and Regulatory Affairs.

As of Sept. 1, the Reginfo.gov record identified the action as a proposed rule under review, and the related OIRA listing showed the review as pending. No notice had been published in the Federal Register, so formal public comment had not opened and no deadline had been set.

Specific changes described publicly so far come from an unpublished draft circulated before the Advisory Council’s vote, not from a final or officially published proposed rule. The draft would give agencies discretion to decide whether public participation is useful, narrow some definitions and reduce or exclude review for certain federally funded or minimally involved projects. It also would focus some analysis on direct material alterations, consolidate analysis and proposed mitigation in an agency-prepared report, and allow an agency official to resolve some adverse-effect questions unilaterally. Those provisions may change.

The National Conference of State Historic Preservation Officers said formal public comment would follow publication of the notice and described the draft as shifting public involvement from a requirement toward agency discretion.

Denver’s proclamation cited the 1960s Skyline Urban Renewal Project, federally funded clearance in much of Auraria and construction of Interstate 70 through Globeville, Elyria and Swansea as historical examples. It also cited the preservation of parts of Denver Union Station after a Section 106 review.

The record does not identify a current Denver project that federal officials have determined would be affected by the draft. The projects named by the council are historical examples, not evidence that they are currently undergoing review under the proposed changes.