1. ESP 179- Winter 2013
Cultural and Historic Resources
Feb. 5th, 2013
Ken Lord, PhD, RPA
2. Historical Background
When?
Antiquities Act of 1906 (blog)
National Historic Preservation Act of 1966 (blog)
NEPA, Environmental Quality Improvement Act
of 1970
Executive Order 11593 (1971)
Archaeological Resources Protection Act of 1979
Native American Graves Protection and
Repatriation Act (1990)
**Click the ‘blog’ links to learn more about the Antiquities Act of 1906
and the National Historic Preservation Act of 1966**
3. Historical Background
Why?
Concern with Protection of Cultural Resources
(blog)
Jobs and Science Combined in Depression Era
Urban Redevelopment in the 1950s and
1960s
Public Concern about Loss of Culture and
History
4. What IS Section 106?
A section of the National Historic
Protection Act of 1966
One of 407 Sections
Prescribes federal agency project
review responsibilities
Take into account effects of actions on
historic properties
Afford the Advisory Council on Historic
Preservation (ACHP) a reasonable
opportunity to comment
6. What is Section 106 Compliance?
Reviewing proposed actions under the
regulations implementing Section 106
of the NHPA
36 CFR 800
Issued by ACHP
Binding on ALL federal agencies
8. Letter of the Law: Section 106
“The head of any Federal agency having direct or indirect
jurisdiction over a proposed Federal or federally assisted
undertaking in any State and the head of any Federal
department of independent agency having authority to
license an undertaking or prior to the approval of an
expenditure of any Federal funds on the undertaking or
prior to the issuance of any license, as the case may be,
take into account the effect of the undertaking on any
district, site, building, structure, or object that is
included in or eligible for inclusion in the National
Register. The head of any such Federal agency shall
afford to the Advisory Council on Historic
Preservation . . . a reasonable opportunity to comment
with regard to such undertaking.”
10. What are the Purposes?
Section 2 of the NHPA states:
Productive harmony
Fulfill needs of future generations
National and international leadership
Stewardship of federally owned historic places
Contribute to non-federal preservation
Encourage preservation by all
Assist states, tribes, Native Hawaiians, local
governments, etc. in doing preservation
11. So The Mandate Is
PRIOR to approving an undertaking, a federal
agency head must:
Take into account the effects of the undertaking on
historic properties
Give the ACHP a “reasonable opportunity to comment”
per Section 106
Do this in a manner consistent with the purposes of the
NHPA per Section 110(d)
“The Section 106 process seeks to accommodate
historic preservation concerns with the needs of the
federal undertakings through consultation . . .
commencing at the early stages of project planning.”
12. How Does It All Work?
Section 106 isn’t for every project
The Key is the Decision Tree
Is there a Federal nexus?
If YES – does the action require review?
If it does
Coordinating with other reviews
NEPA
NAGPRA
Identifying/Contacting SHPO(s) and or THPO(s)
Planning for public involvement
Identifying other consulting parties
13. Decision Tree
Is the undertaking subject to review?
Difference between Section106 and NEPA
For Section 106 an “undertaking” is anything
Under the direct or indirect jurisdiction of a federal agency
So “undertakings” are anything a Federal agency
Does
Assists with money or anything else
Permits
State and local permit actions under federal delegation
and oversight are not Section 106 undertakings
BUT the act of delegation or oversight may be an
undertaking
14. Decision Tree
Does it have “Potential to Cause Effects?”
If NO – the process is over
Potential to Affect Historic Properties
New construction
Renovation
Space acquisition
Land transfers
Land management
Building management
If YES – Coordinate with Other Reviews
NEPA
NAGPRA
AIRFA
ARPA
Agency-specific legislation, e.g. Section 4(f) DOT Act
15. Identification of Historic Properties
and Effects
Identification is an AGENCY responsibility
Must identify ALL historic properties
Must do a standard level/kind of survey
Class I, II, III
Phase 1, Phase 2, Phase 3
Must meet SHPO requirements
Must “mitigate” anything found
16. Identification
Scoping Effort
Establish Area(s) of Potential Effects (APE)
Consider more than physical effects
Visual, auditory, atmospheric
Potential changes in land or building use
Changes in setting
Potential for neglect
Review available data (records searches)
Seek information from others (NAHC/tribal letters)
Identify issues
No absolute standards for identification
17. What Happens When You Find
Something?
Evaluating Properties
Agency applies National Register criteria
With SHPO/THPO, tribe, Native Hawaiian group
Consensus determination of eligibility
To Keeper of National Register for formal
determination if:
Agency and SHPO/THPO disagree, or
ACHP or Keeper request
18. National Register Criteria:
36 CFR.60.4
You see this in all our reports
Integrity of design, materials, etc.
Plus
A: Association – events, broad patterns (Traditional
Cultural Landscapes or Traditional Cultural Properties
B: People significant in our past
C: Characteristic of
Type, period, etc.
Work of a master
High artistic values
Distinguishable entity (District)
D: Data important in history or prehistory
19. No Historic Properties Subject to Effect
Means
No historic properties in APE, or
Historic properties, but won’t be affected
Agency documents finding to SHPO/THPO
Notifies other consulting parties
Makes documentation available
30-day window for SHPO/THPO objection (some argument
on this)
What has been done to identify historic properties?
What is the basis for concluding there is nothing affected?
20. What’s Up with CEQA Then?
How is it different?
In reality cultural resources are generally the
same under NEPA or CEQA.
When does it apply?
CEQA does apply to discretionary projects and
equates a substantial adverse change in the
significance of a historical resource with a
significant effect on the environment (Section
21084.1).
21. What’s Up with CEQA Then?
When does it not apply?
CEQA does not apply to ministerial actions
which may impact a historical resource. For
example, a project which complies with the
Uniform Building Code and for which no
discretionary permit is required does not fall
under CEQA, even if the project may alter a
building which is considered a "qualified
historic structure" under the State Historical
Building Code
22. Who Determines if There are Resources?
Lead Agency has Responsibility
Initial Study Checklist
Are Resources Present? What Kinds? Will They be
Impacted?
Any Resource listed in or eligible for listing in the California
Register of Historical Resources is presumed to be historically or
culturally significant.
Resources which are listed in a local historic register or deemed
significant in a historical resource survey are to be presumed
historically or culturally significant unless "the preponderance of
evidence" demonstrates they are not.
23. What if a determination hasn’t been made?
This category is most common. The Information
Centers provide information on known sites and
identify areas that have been inventoried.
If this hasn’t happened, an archaeological and/or
historic inventory must happen to determine if
significant resources are present.
24. What Happens When You Find
Something?
Evaluating Properties
We know what to do on listed properties and
properties under local historic registers.
Many finds are a result of surveys and the
discovered resources have not evaluated and
determinations must be made.
This is key to CEQA just like to NEPA.
25. State Historic Resources Commission
and the Office of Historic Preservation
Resources need to be evaluated
California Register of Historic Places
Requirements
Integrity of design, materials, etc.
Plus
A: Association – events, broad patterns (Traditional Cultural
Landscapes or Traditional Cultural Properties
B: People significant in our past
C: Characteristic of
Type, period, etc.
Work of a master
High artistic values
Distinguishable entity (District)
D: Data important in history or prehistory
26. Evaluation of a Resource
Procedures from previous slide and or
Section 106 come into play. A yes to any
of the criteria results in a significant
resource.
Criteria D. This is the troubling one. Base
approach on prehistoric resource is Phase
II testing to determine if resource has
data potential and how much.
27. What do you do with a significant
site?
If the lead agency determines that the project may have a
significant effect on unique archaeological resources, the
environmental impact report shall address the issue of those
resources.
“unique archaeological resource“ means an archaeological artifact,
object, or site about which it can be clearly demonstrated that,
without merely adding to the current body of knowledge, there is
a high probability that it meets any of the following criteria:
(1) Contains information needed to answer important scientific
research questions and that there is a demonstrable public
interest in that information.
(2) Has a special and particular quality such as being the
oldest of its type or the best available example of its type.
(3) Is directly associated with a scientifically recognized
important prehistoric or historic event or person. (from CEQA
21083.2)
28. What do you do with a significant
site?
An environmental impact report, if otherwise
necessary, shall not address the issue of
nonunique archaeological resources.
“nonunique archaeological resource” means an
archaeological artifact, object, or site which does
not meet the criteria in subdivision (g). A
nonunique archaeological resource need be given
no further consideration, other than the simple
recording of the resource.
29. What do you do with a significant
site?
If it can be demonstrated that a project will cause
damage to a unique archaeological resource, the
lead agency may require reasonable efforts to be
made to permit any or all of these resources to
be preserved in place or left in an undisturbed
state. Examples of that treatment, in no order of
preference, may include, but are not limited to,
any of the following:
(1) Planning construction to avoid archaeological sites.
(2) Deeding archaeological sites into permanent
conservation easements.
(3) Capping or covering archaeological sites with a layer
of soil before building on the sites.
(4) Planning parks, greenspace, or other open space to
incorporate archaeological sites.
30. Mitigation
Mitigation measures required if you can’t
conserve.
Excavation as mitigation shall be restricted to
those parts of the unique archaeological resource
that would be damaged or destroyed by the
project.
Phase II Testing. Excavation as mitigation shall
not be required for a unique archaeological
resource if the lead agency determines that
testing or studies already completed have
adequately recovered the scientifically
consequential information from and about the
resource, if this determination is documented in
the environmental impact report.
31. How do we get to the end product for
use in Environmental documents?
Keys for Consulting on Cultural Resources
Project Description
Area of Potential Effect
Field Methodology
Maps
Photographs
Literature Review
Native American Consultation
Eligibility Determination
Determination of Effect
Professional Qualifications
Report Format
Adversely Affected Historic Properties
32. Project Description
Make sure it is as complete as possible
Purpose
Acres, location, construction methods
Construction phasing and elements
Depth and types of ground disturbance
Visual impacts
33. Define Undertaking
Clearly define why the report is being
required.
Permit type
Initial Study Checklist
Action, etc.
34. Field Methodology
Field dates, names and numbers of people on
survey and qualifications
Include field conditions, any variations in
methods
Records searches only good for 1 yr
Surveys only good for 2 yrs unless can
demonstrate old methods and no changes in
conditions
Include potentials for subsurface remains
35. Literature Reviews and
Native American Consultation
Records search no more than 1 yr old
Other maps (older USGS, GLO, Sanborns)
Include submerged resources
Native American consultation
Document contacts
Send letters followed by telephone/email contact
Corps may deal directly with federally recognized tribes
36. Determination of Eligibility
Consultants do not make determinations
Federal or Local agencies make determination
and SHPO concurs.
Determinations must be made for
Each prehistoric or historic site or object found in APE
Must include historic context in accordance with NR
Bulletin 15
Must address eligibility for NRHP/CRHP for each of the 4
criteria
37. Determination of Effect
If sites found and determined eligible
Must discuss impacts and define the effect with
ACHP framework for 36 CFR 800.4(d) and
800.5
Describe how site(s) would be affected
38. Professional Qualifications
Principal Investigators must meet Secretary of
Interior’s Standards for Professional Qualifications
(48CFR 44738-44739)
Show qualifications of those participating in
survey and evaluations
Don’t make determinations if not qualified
according to qualifications above
39. Adversely Affected Historic
Properties
Must develop treatment plan and MOU
Again done primarily with USACE/SHPO
input