Hearings to examine the Section 106 consultation process under the National Historic Preservation Act

Public Lands and Energy MarkupsSenate Energy and Natural Resources · 2025-10-29 · 119th Congress
The Senate Energy and Natural Resources Committee held this hearing to examine how the Section 106 consultation process under the National Historic Preservation Act (NHPA) affects federal permitting for energy and infrastructure projects. Begins at 0:16:13
Transcript
Highlights

Title

Reforming the Section 106 historic preservation consultation process

Purpose

The Senate Energy and Natural Resources Committee held this hearing to examine how the Section 106 consultation process under the National Historic Preservation Act (NHPA) affects federal permitting for energy and infrastructure projects. Chair Lee and Ranking Member Heinrich framed the debate around balancing genuine historic and tribal cultural preservation against project delays, hearing from a state historic preservation officer, a utility company compliance manager, and a tribal historic preservation officer. Begins at0:16:13

Who spoke

Chair Mike Lee (R-UT)0:16:13: Opened by describing Section 106 as procedural rather than outcome-mandating0:16:38, citing delayed projects like the Royal Slope Solar Project (three years behind schedule)0:19:10 and the Great Lakes Tunnel Project (four years added to schedule)0:19:40; pointed to Utah's digitized, efficient process as a model0:21:06.

Sen. Martin Heinrich (D-NM), Ranking Member0:22:26: Said the NHPA simply requires checking for historic resources before building and allows trade-offs when damage can't be avoided0:22:53; cited Mount Taylor in New Mexico as a sacred traditional cultural property to eight tribes0:23:47; warned public land agencies have lost more than 20% of staff and face further layoffs0:25:25.

Dr. Chris Merritt, Utah State Historic Preservation Officer0:29:05: Said Utah reviews about 1,500 undertakings a year with only 3.2% resulting in adverse effects0:31:28, and the office has been paperless since 2017 with a database of 270,000 resources0:31:54; advocated defining "area of potential effect" more clearly and expanding programmatic agreements0:46:490:54:32; noted Utah's SHPO budget is 60% federally funded0:52:26.

Andy McDonald, Environmental Compliance Manager, Montana-Dakota Utilities0:34:21: Described a three-mile distribution line project where two federal agencies applied inconsistent definitions of the area of potential effect, delaying construction roughly 18 months0:49:53; urged Congress to clarify that agencies should only review land they directly manage for linear projects0:37:481:33:37.

Steven Concho, Tribal Historic Preservation Officer, Pueblo of Acoma0:38:57: Said Section 106 is "not a courtesy" but a legal duty reflecting the government-to-government relationship with tribes0:39:56; described the "Acoma Model" on a CO2 pipeline project, where early consultation surveyed 14 miles and identified 150 cultural sites, including 90 that standard archaeology would have missed, in six weeks0:42:13; said Acoma's office operates on roughly $100,000 a year0:43:11.

Sen. Jim Justice (R-WV)0:57:23: Argued the permitting process is badly "bogged down" and asked McDonald for an estimate of Section 106 compliance costs passed to consumers1:01:04.

Sen. Catherine Cortez Masto (D-NV)1:02:30: Asked witnesses whether Section 106 should be eliminated (none agreed)1:02:30; probed funding disparities, noting Acoma receives no directed federal funding, only competitive grants1:05:05; asked about impacts of planned Interior Department layoffs of 2,000 staff1:07:02.

Sen. Tom Cotton (R-AR)1:07:59: Cited a McKinsey estimate that projects take four to five years for environmental review plus four more years of litigation1:07:59, and a Breakthrough Institute finding that 10 environmental groups drive over a third of "frivolous" lawsuits, of which agencies win about 80%1:08:20; asked McDonald whether unsuccessful litigants can sue again under other statutes1:10:00.

Sen. Ruben Gallego (D-AZ)1:11:46: Noted Arizona's SHPO reviewed over 3,000 federal projects in three years with average turnaround under 30 days and an adverse-effect rate below 2%1:12:17; asked about the Grand Canyon lodge reconstruction after the Dragon Bravo Fire and streamlining tools like categorical exclusions1:12:46.

Sen. Lisa Murkowski (R-AK)1:17:47: Said Alaska is home to 40% of the nation's tribes and 80% of the state remains unsurveyed for historic properties1:18:33; cited a broadband project requiring 500 hand-dug test pits and a 30-month mineral exploration review with seven EA extensions1:19:301:20:20.

Sen. John Hickenlooper (D-CO)1:24:13: Asked about minimizing impacts while speeding transmission buildout1:24:58; raised the Trump administration's removal of three Advisory Council on Historic Preservation members plus two resignations, and asked about the impact of staffing cuts1:28:31.

Sen. Dave McCormick (R-PA)1:30:02: Criticized reliance on subjective concepts like "traditional cultural properties"1:31:08 and cited a projected 80% rise in U.S. electricity demand by 2050 in pressing McDonald on 106-related delays1:32:13.

Sen. Alex Padilla (D-CA)1:34:19: Noted California's SHPO completed roughly 4,100 Section 106 reviews in 2024 alone and the state has 109 federally recognized tribes, more than any other state1:34:45; emphasized that consultation must be genuinely "meaningful," not a box-checking exercise1:35:45.

Key moments

Chair Lee listed multiple stalled projects attributable partly to Section 106 ambiguity, including the Royal Slope Solar Project (three years behind)0:19:10 and the Great Lakes Tunnel Project (roughly four years added)0:19:40.

Merritt testified that of Utah's roughly 1,500 annual case reviews, only about 3.2% result in adverse effects, and the office has cut review times by over 75% through digital workflows0:31:280:31:54.

Concho described the "Acoma Model": early tribal involvement on a CO2 pipeline let cultural experts survey 14 miles and identify 150 sites — including 90 that standard archaeology would have missed — and reroute the pipeline in six weeks0:42:130:42:46.

McDonald said inconsistent federal agency interpretations of "area of potential effect" delayed a Montana-Dakota Utilities distribution line project by about 18 months, colliding with a narrow two-month construction window0:49:530:50:22.

Cortez Masto asked all three witnesses whether Section 106 should be eliminated entirely; none agreed, underscoring bipartisan consensus the process should be reformed, not repealed1:02:30.

Merritt and Concho both testified their offices are largely grant-funded: Utah's SHPO gets 60% of its budget ($1 million) from the National Park Service, while Acoma's THPO operates on roughly $100,000 a year with no directed federal funding0:52:261:05:05.

Cotton cited findings that 10 environmental groups drive over a third of environmental lawsuits, with agencies prevailing in about 80% of cases, arguing this "lawfare" still delays projects despite low success rates1:08:20.

Murkowski described a small Alaska broadband project requiring 500 hand-dug test pits — more ground disturbance than laying the fiber itself — that ultimately caused the community to lose the project1:19:301:20:00.

Heinrich noted the National Historic Preservation Act does not apply to three buildings in Washington: the Capitol, the Supreme Court, and the White House0:26:23.

Hickenlooper asked about the Trump administration's removal of three Advisory Council on Historic Preservation members plus two additional resignations; Merritt said the vacancies could hurt efforts to expedite agreements nationally1:28:311:29:17.

Metadata

CommitteeSenate Energy and Natural Resources
Chamber / CongressSenate · 119th Congress
Date2025-10-29
TypeMeeting
Witnesses
(none listed in event metadata)
Videosenate-isvp
Transcript258 caption blocks · 11,935 words · 1:45:41 runtime
EventCongress.gov 337587