ESP 179- Winter 2012

Cultural and Historic ResourcesFeb. 7th, 2012

Ken Lord, PhD, RPA

Historical BackgroundWhen?

Antiquities Act of 1906 National Historic Preservation Act of 1966 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)

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

Archaeological

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

Historical

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.”

Traditional Cultural Resources

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

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.”

How Does It All Work?

Section 106 isn’t for every project 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

Is the undertaking subject to review?

Difference between 106 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

Initiating Section 106

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

Initiating Section 106

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

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

Identification

Evaluating Properties Agency applies National Register criteria

With SHPO/THPO, tribe, Native Hawaiian groupConsensus determination of eligibility

To Keeper of National Register for formal determination if:Agency and SHPO/THPO disagree, orACHP or Keeper request

What happens whenyou find something?

National Register Criteria: 36 CFR.60.4 You see this in all our reports Integrity of design, materials, etc.

PlusA: Association – events, broad patterns (Traditional

Cultural Landscapes or Traditional Cultural PropertiesB: People significant in our pastC: Characteristic of

Type, period, etc. Work of a master High artistic values Distinguishable entity (District)

D: Data important in history or prehistory

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?

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).

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

What’s Up with CEQA Then?

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.

Who determines ifthere are resources?

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.

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.

What happens whenyou find something?

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

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.

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)

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.

What do you do witha 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.

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.

How do we get to the end product for use in Environmental document?

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

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

Define Undertaking

Clearly define why the report is being required.

Permit type

Initial Study Checklist

Action, etc.

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

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

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

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

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

Adversely Affected Historic Properties

Must develop treatment plan and MOU

Again done primarily with USACE/SHPO input

Questions?