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ENVIRONMENTAL PLANNING

CULTURAL RESOURCES LAWS AND REGULATIONS

CH 5 CH 5 HO # 13, 13a, 13b

http://www.achp.gov/regs.htmlhttp://www.achp.gov/regs.html

Module Objective

• Review Cultural Resources Requirements under National Historic Preservation Act (NHPA)

• Emphasis on NHPA Section 106 Iterative Process for Identifying, Evaluating and Protecting Cultural Resources

• Review Other Key Legislative Requirements to include Consultation with Indian Tribes

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What are Cultural Resources?Cultural resources are elements of our environment which have been made, built, altered or modified in some way, left behind as physical remains, or considered to sustain a cultural identity (both physical and non-physical), by humans. 3

What is Archeology?

Set of methods and procedures for studying history through non-written evidence.

Artifacts: portable objects of human manufactureMonuments: non-portable objects of human manufacture (Mt. Rushmore)

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What is Archeology?

Sites: non-portable objects of human deposition; places where people congregate or carry out activity

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What is Archeology?

Contexts: associations of objects of human activity

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DefinitionsDefinitions

National Register of Historic Places: Register of historic places maintained by the Secretary of the Interior.Historic Properties: Sites or monuments eligible for listing, or listed on, the NRHP.

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Definitions (continued)

Area of Potential Effect (APE): Areas designated in consultation with SHPO/THPO in which a potential for project impacts ( effects) exists.

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Definitions (cont.)

Undertaking: Any activity that may affect an historic property. Includes all civil works projects and Federal actions (permits, licenses, land sales)

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• State Historic Preservation Officer (SHPO): Appointed by state governors to administer Section 106 within states.

• Tribal Historic Preservation Officer (THPO): Oversees Section 106 compliance for Federally Recognized Tribes.

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Advisory Council for Historic

Preservation

• Council in Washington, D.C. that administers implementation of Section 106 of NHPA

• Consulted on projects requiring mitigation or other significant commitments

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Categories ofCulturalResources

• Historic Properties • Museum Collections• Archaeological Sites• Traditional Cultural Properties (TCP)• Records/Archives

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Corps of EngineersEngineers

ResponsibilitiesResponsibilities

• Cultural resources management is an equal and integral component of Civil Works.• Corps Policy to identify, evaluate and manage resources eligible for listing on National Register at earliest stages of planning.• Early communication with SHPO/THPO is an important part of the planning process.

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Consequences of Waiting…

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Important Cultural Resources Laws

• National Historic Preservation Act (NHPA) 1966.

• Native American Graves Protection and Repatriation Act (NAGPRA) 1990.

• American Indian Religious Freedom Act (AIRFA) 1996.

• Archeological Resources Protection Act (ARPA) 1979.

• The Abandoned Shipwreck Act 1987.15

NATIONAL HISTORIC PRESERVATION ACT NATIONAL HISTORIC PRESERVATION ACT OF 1966 (NHPA) (Public Law 89-665)OF 1966 (NHPA) (Public Law 89-665)

• Expands the National Register created by the Historic Sites Act of 1935.

• Establishes the Advisory Council on Historic Preservation. http://www.achp.govhttp://www.achp.gov

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Authorizes each State to appoint a State Historic Preservation Officer (SHPO) Authorizes recognized Native American Indian Tribes to identify a Tribal Historic Preservation Officer (THPO)

NATIONAL HISTORIC PRESERVATION ACT OF 1966 (NHPA)

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NRHP Legislation

• Established Section 106 process for assessing impacts of projects on National Register sites, or Register eligible sites

• The Act does not prevent an action, but mandates procedural steps in consideration of effects to historic properties

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Advisory Council on History PreservationRegulations at 36 CFR Part 800, 1966

• Guides Federal Agencies in cultural resources compliance

• - Outlines the specific attention to be given to National Historic Landmarks.

• - Implements the Section 106 Review Process for Federal undertakings.

Guides Federal Agencies in cultural resources compliance- Outlines specific attention to be given to National Historic Landmarks.- Implements Section 106 Review Process for Federal undertakings.

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Initiating Section 106 Process• Consult NRHP

publications, SHPO’s property lists, interested parties, etc.

• Customary 50 year threshold for eligibility.

• Use archaeological team members to maintain consultation with SHPO in planning process.

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Investigations

• Conducted in Area of Potential Effects (APE).

• Conducted to determine NRHP eligibility of known cultural resources and those discovered during investigation.

• Should be scaled for potential presence of historic properties in the APE.

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Investigations (con’t)– Be aware of tribal THPO

and SHPO issues.– It is possible that most

areas will have never been investigated for the presence of historic properties.

– Local historical/archeological societies can prove invaluable in scoping the investigations.

– All investigations should maintain consultation with the SHPO/THPOs.

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ARCHEOLOGICAL AND HISTORIC WORK:A THREE-STEP PROCESS

Phase I - Survey: Range from reconnaissance to intensive levels, depending on the nature and stage of a project.

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Section 106: An Iterative Process (Phase 1)

Literature and Records Searches Analysis, evaluation, coordinationPlan next step,Report 24

Section 106: Iterative Process ( Phase 1cont.)

• Field Surveys: Range from Sample level to Intensive/Dragnet

Analysis, evaluation, coordinationPlan next step,Report 25

THREE-STEP PROCESS (cont.)

Phase II - Evaluation: Assess the potential significance of archeological and historic properties against the criteria of the National Register (extensive testing may be expensive).

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Section 106: Iterative ProcessSection 106: Iterative Process (Phase 2 cont.)Section 106: Iterative Process (Phase 2 cont.)

Testing: Shovel Testing, Exploratory Testing

Analysis, evaluation, coordinationPlan next step, Report

Emphasis on Non-Invasive techniques

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THREE-STEP PROCESS (cont.)

Phase III - Mitigation: Avoidance, archeological excavation, or historic documentation to minimize, ameliorate, or compensate for the loss of characteristics of a property that made it eligible for the National Register. (May need Section 106 Agreement (i.e. MOA).

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Section 106: Iterative Process (Phase 3 cont.)

• Mitigation :

Preservation / Protection or Excavation / Data Recovery

Analysis, evaluation, coordination

Plan next step,

Report & Curation 29

Effects• An undertaking has an

effect when it may alter characteristics of a property that may qualify the property for inclusion in the NRHP”

• “An adverse effect (is one that may) diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association.” 30

Assess Effects• Apply Criteria of Effect

– No effect found:• Notify SHPO

– Effect found:• Apply criteria of

adverse effect– No adverse effect:

» Obtain SHPO concurrence

» Submit to ACHP for review

– Adverse effect:» Mitigate

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Resolve Adverse Effects

• Mitigation Options:– Avoid.– Alternative project

design.– Rehabilitate property.– Adopt preservation

program.– Move property.– Data recovery.– Document before

destroying: Architectural, Engineering, Historical or Archaeological Documentation.

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FAILURE TO AGREE

Failure to Resolve Adverse Effects:• Agency, SHPO, THPO or ACHP can make determination.• Is essentially a Termination of Consultation.• If agency terminates, they must request ACHP Comment.• Agency must respond to ACHP Comment and •FOLLOW THE PROCESS 33

SECTION 106 PROCESS FLOW CHART SECTION 106 PROCESS FLOW CHART SUMMARYSUMMARY

U N D E R T A K IN G M IG H T A F F E C T H IS T O R IC P R O P E R T IE S

H IS T O R IC P R O P E R TIE S A R E A F F E C T E D

H IS T O R IC P R O P E R T IE S A R E A D V E R S E L Y A F F E C T E D

F A IL U R E T O A G R E E

P u b lic In vo lvem e n t

P u b lic In vo lvem e n t

P u b lic In vo lvem e n t

P u b lic In vo lvem e n t

Resolve Adverse EffectsC o ntin u e co nsu lta tion

Asses Adverse EffectsA p p ly c rite ria o f a d vers e e ffe ct

Identify Historic PropertiesD e term ine s co p e o f e ffo rtsId e n tify h isto ric p ro pe rt ies

E va lua te h is to ric s ig n ifica n ce

Initiate Section 106 ProcessE s tab lish u nd e rtak ing

Id e n tify S H P O /TH P O & o th e r co n s u lt in g pa rt iesIn v o lv e th e p ub lic

C O U N C IL C O M M E N T

M E M O R A N D U M O FA G R E E M E N T

N O H IS T O R IC P R O P E R T IE SA D V E R S E L Y A F F E C T E D

N O H IS T O R ICP R O P E R T IE S A F F E C T E D

N O U N D E R T A K IN G /N O P O T E N T IA L TOC A U S E E F F E C TS

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ABANDONED SHIPWRECK ACT OF 1987 (Public Law 100-298)

•The U.S. identifies, evaluates and asserts title to any abandoned shipwreck on or embedded in submerged lands of a State when the shipwreck is included in or determined eligible for the NRHP.• Transfers title to appropriate States, except in the caseof Indian Lands.

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ABANDONED SHIPWRECK ACT OF 1987 (Public Law 100-298) (cont.)

Promotes shipwrecks as valuable State resources, and through the National Park Service, encourages the development of underwater parks. 36

ENVIRONMENTAL PLANNING and EVALUATION ER 1105-2-100, Appendix C-4. Cultural Resources

• Outlines cultural resources requirements for Recon, Feasibility, and Planning Engineering and Design Studies.• Details cost apportionment and accountability for cultural resources costs. 37

ENVIRONMENTAL PLANNING and EVALUATION ER 1105-2-100 Appendix C-4 Cultural Resources (cont.)

• Costs over 1% are shared with the local sponsor. Survey and evaluation costs are not part of the 1% limit.

• Provides waiver of 1% limit for continuing authority projects.

• Excludes mitigation costs from economic analysis.

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Consultation with Indian Tribal Governmentsonsultation with Indian Tribal Governments Executive Order 13175 of Nov 6, 2000Executive Order 13175 of Nov 6, 2000

• Principles guiding agency activities• Unique legal relationship with tribes as “domestic dependent nations” under United States protection• Tribes have sovereign powers over members and territory

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Six Corps Tribal Policy Principles

1. Sovereignty

2. Pre-decisional consultation

3. Government-to-government relationships

4. Trust responsibility

5. Protection of natural & cultural resources

6. Economic capacity building

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SUMMARY

• ConsultConsult• CONSULTCONSULT

• CONSULTCONSULT

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Classroom Exercise HO# 12

Survey and samplingRandom grid stations

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