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ESP 179- Winter 2013

Cultural and Historic Resources
Feb. 5th, 2013

Ken Lord, PhD, RPA

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**

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

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

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

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
 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

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

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

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

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

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

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

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).

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

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.

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.

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.

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)

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.

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 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

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

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Feb. 5 th 2013 esp 179-cultural 2013

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