Archaeological and Historic Resources in Project Management

Archaeological and Historic Resources in Project Management

Section 106 of the National Historic Preservation Act

The National Historic Preservation Act of 1966, As Amended

1. Consider the effects your undertaking (project) has on historic resources.

2. Give the Advisory Council on Historic Preservation an opportunity to comment.

NHPA – In Brief

1.How to consider Effects?

A. Is it an undertaking?– Project activity or program

funded in whole or in part under the direct or indirect jurisdiction of a Federal agency

Carried out on behalf of a Federal agency Carried out with Federal financial assistance Requiring a Federal permit, license, or approval Subject to State or Local regulation delegated by a

Federal Agency

NHPA – In Brief

B. Who’s involved?– Other Federal authorities, such as FHWA– Appropriate State Historic Preservation Officer

(SHPO) or Tribal Historic Preservation Officer (THPO)

– Other consulting parties– The public

NHPA – In Brief

C. Identify Historic Properties (districts, sites, buildings, structures, and objects that are listed or eligible for listing in the National Register of Historic Places)– Define the Area of Potential Effect– Identify or inventory for historic properties– Evaluate significance and integrity

NHPA – In Brief

D. Assess Effects

– Does the undertaking have an effect on historic resources? Yes or No

– Is that effect adverse? Yes or No

NHPA – In Brief

E. Resolve Adverse Effects

– Revise undertaking to avoid adverse effects– Consult on how to resolve adverse effects– Bind commitments into a Memorandum of

Agreement

Remember: Consultation does not always mean agreement.

NHPA – In Brief

2. Council opportunity to comment

– Section 106 built around consultation– SHPO generally acts as ACHP’s agent– Council gets involved:

• On its own initiative

• At the request of a federal agency

USFWS, FHWA, and Roads

Whose project sets the respective roles

– If FHWA is lead Federal agency, then USFWS is a consulting party if the project goes through a refuge or Federal land

– If USFWS is lead Federal agency, then FHWA might or might not be a consulting party

FHWA as Lead Federal Agency

FHWA is not a land-owning or managing agency

FHWA tends to be effect-driven in 106 application

NEPA is the umbrella legislation FHWA emphasizes avoidance, minimization,

and mitigation in that order

FHWA as Lead Federal Agency

FHWA has 4(f) requirements – see handout FHWA usually relies heavily on state DOT for

expertise and work effort Each FHWA division sets own protocols FHWA Division or State DOT usually has

Cultural Resources expert as point of contact

USFWS as Lead Federal Agency

You have land managing responsibilities Section 110 responsibilities Desirable to inventory lands in advance of

projects.

How to do Section 106 Better

• There is enormous flexibility in Section 106

– Level of effort should be commensurate with impacts

– Combine steps where possible– Work programmatically


• Flip side of flexibility– Section 106 is a process, not a permit– A flexible process is complicated

Recommendation: Use the expertise of cultural resource professionals who understand Section 106


Set the Area of Potential Effect (APE)

Define the project early– Early scoping allows interaction with design team– Early scoping sets workable schedule

Define the project precisely– Use professional expertise– Include staging and borrow and waste areas


• Effective Background Research

– Historic Contexts– Archaeological predictive models/sensitivity

models– Use existing databases, such as CRGIS


Work Programmatically

– Use programmatic agreements (PA) to exempt activities

– Use PA’s to collapse steps– Use PA’s to get delegation on decision-making– Focus on the mundane, not the rare example


Role of the SHPO

– The SHPO’s role is to advise, not to permit– Consultation requires discussion, not agreement– Except for eligibility, Federal Agency has last

word

Remember: Cultivate a good working relationship with SHPO based on mutual understanding of roles and trust.


Public involvement under 106 and NEPA

– 36CFR800 allows use of NEPA public involvement to satisfy requirements under Section 106

– Consulting parties could be other agencies, local historical groups, Tribes, landowners.

– Level of effort to find/involve consulting parties is commensurate with nature of projects and impacts


Federally recognized Tribes

– Government-to-government relationship– Find out which tribes were ancestral to area

beyond current tribal lands– Relationship-building is key

• Requires patience and trust-building– Earth-disturbing activities tend to be what triggers

interest– Work toward establishing protocol as letter of

understanding or MOA for consultation


Archaeology and Avoidance

– Impacts usually confined to project’s area of ground disturbance

– Explore less-disturbing vegetation clearance methods (cutting flush versus grubbing)

– Geotextile and file as temporary or permanent avoidance

– Site burial under asphalt might not be adverse effect

Section 4(f)

Applies only to USDOT Transportation projects

Definition of use, which includes use of refuge lands, as well as historic properties

Alternatives that avoid use Test of prudent and feasible for viable

alternative

Concluding Main Points

1. Work with available experts on cultural resources

- USFWS staff- FHWA or state DOT staff- SHPO staff- Consultants

Concluding Main Points

2. Establish project definition, APE, and scope of needed work early

- Use cultural resource experts to define APE

3. Use the flexibility inherent in Section 106, including effect-driven approaches

4. Work programmatically5. Complete cultural resource inventories in

advance of projects.

Archaeological and Historic Resources in Project Management

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