Interior’s New Secretarial Order Won’t Speed Up Development. It Will Slow It Down.
Section 106 of the National Historic Preservation Act rests on a simple idea: before the federal government allows permanent harm to places that matter to the American people, it should listen to the people who know those places best, understand what will be lost, and consider whether the harm can be avoided. The law applies whenever a federal agency carries out, funds, licenses, permits, or approves a project that may affect a historic property. It requires the agency to identify what’s at stake, assess the potential harm, and consult with Tribal Nations, state and local officials, property owners, experts, and the public about how to avoid, minimize, or mitigate that harm. It does not dictate an outcome, and it does not give preservationists a veto. It simply requires the government to make an informed decision before the damage is done.
On August 20, 2026, Secretary Burgum signed Secretarial Order 3452 directing the Department of the Interior to use every available tool in the existing Section 106 regulations to push undertakings out of consultation altogether, to enforce a 30-day response deadline on state and tribal preservation officers, and to treat 180 days as the outer limit for resolving an adverse effect—after which agency officials are told to consider simply terminating consultation. That 180-day number appears nowhere in the statute or the regulations; it is invented for this Order. The Order encourages agencies to consider terminating consultation before the 180-day timeframe if the agency official feels additional consultation will be unproductive. The Order also formally disfavors offsite compensatory mitigation, echoing a nearly identical directive Secretary Bernhardt issued in 2020.
It is worth being clear-eyed about what problem this Order is actually attempting to solve. Only about 3% of federal undertakings even have the potential to adversely affect historic properties, and the Section 106 process quickly leads to resolution for the overwhelming majority of those adverse effects. Interior’s own framing acknowledges that the Order’s real target is the small number of complex, controversial projects that take longer than six months of consultation and review—but its “solution” will not actually deliver the speed it promises.
The irony of SO 3452 is that it claims to be about speed while taking away one of the tools that keeps projects moving: offsite compensatory mitigation. Indeed, offsite mitigation is often what keeps a construction project on schedule in the first place. Imagine an archaeological site sitting in the path of a proposed project; excavating it on the spot may be logistically difficult or prohibitively expensive and could hold up construction for months. An agency might instead have the developer fund regional sensitivity mapping that helps guide future projects, or fund excavation of a comparably important nearby site that delivers real public value without stalling the project at hand. That kind of offsite mitigation frequently costs less than onsite work and can proceed on a parallel track with construction rather than in front of it. Taking this tool away doesn’t eliminate the underlying conflict between a federal project and the historic properties it affects—it just removes one of the ways Interior has found to resolve that conflict without forcing a stalemate.
There are also situations where onsite mitigation simply isn’t possible, which makes disfavoring the offsite alternative even harder to justify. Consider a Bureau of Reclamation reservoir whose water levels rise and fall in ways that damage an archaeological site or a place of deep religious and cultural significance to a Tribe or Native Hawaiian organization. There is no way to mitigate that harm “onsite,” because the harm is inherent to how the reservoir operates. In practice, the agency and the affected Tribe might instead agree to fund educational materials for tribal schools about the site and its history—a real, if imperfect, way of honoring what’s being lost. An order that disfavors this kind of solution doesn’t just complicate the paperwork; it damages the government-to-government relationship between the Tribe and the agency responsible for stewarding it.
Developers who lose access to offsite compensatory mitigation will face higher costs, longer timelines, and fewer paths to a workable agreement—all while an already thin bench of agency reviewers absorbs new, arbitrary deadlines and a mandate to reconsider terminating consultation rather than resolving it. Offsite mitigation is just one example of the tools built into the Section 106 process that make projects better and communities more willing to see these projects operate in their backyards for decades.
At the same time, it’s worth keeping this Order in perspective given all the other threats to Section 106 that we are seeing: it exercises Interior’s discretion within existing law rather than eviscerating the Section 106 process as the ACHP has proposed. But by discouraging one of the most practical tools for resolving conflicts between federal projects and the communities and Tribes who care about the places in their path, this Order is likely to make the very projects it’s trying to speed up more expensive, more contentious, and slower to complete.
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