Archaeological and Historic Resources in Project Management

1. Archaeological and Historic Resources in Project Management Section 106 of the National Historic Preservation Act

2. 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.

3. 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

4. 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

5. 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

6. 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

7. 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.

8. 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

9. 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

10. 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

11. 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

12. USFWS as Lead Federal Agency • You have land managing responsibilities • Section 110 responsibilities • Desirable to inventory lands in advance of projects.

13. 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

14. How to do Section 106 Better • 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

15. How to do Section 106 Better 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

16. How to do Section 106 Better • Effective Background Research • Historic Contexts • Archaeological predictive models/sensitivity models • Use existing databases, such as CRGIS

18. How to do Section 106 Better • 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

19. How to do Section 106 Better • 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.

20. How to do Section 106 Better • 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

21. How to do Section 106 Better • 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

22. How to do Section 106 Better • 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

23. 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

24. Concluding Main Points • Work with available experts on cultural resources • USFWS staff • FHWA or state DOT staff • SHPO staff • Consultants

25. Concluding Main Points • Establish project definition, APE, and scope of needed work early • Use cultural resource experts to define APE • Use the flexibility inherent in Section 106, including effect-driven approaches • Work programmatically • Complete cultural resource inventories in advance of projects.