Chapter 28 - Cultural Resources

• American Indian Religious Freedom Act of 1978, 42 USC 1966
• Antiquities Act of 1906, 16 USC 431-433
• Archeological and Historic Preservation Act of 1974, 16 USC 469
• Archaeological Resources Protection Act of 1979 (ARPA), 16 USC 470
• Executive Order 11593, Protection and Enhancement of the Cultural Environment, 1971
• Historic Sites Act of 1935, 16 USC 461-467
• National Environmental Policy Act of 1969 (NEPA), 42 USC 4321-4347
• National Historic Preservation Act of 1966, as amended (NHPA), 16 USC 470
• Native American Graves Protection and Repatriation Act, 1990 (NAGPRA), 25 USC 3001-3013
• Reservoir Salvage Act of 1960, 16 USC 469
• United States Department of Transportation Act of 1966 (Section 4[f]), 49 USC 303

• Advisory Council on Historic Preservation, Protection of Historic and Cultural Properties, Section 106 regulations, 36 CFR 800.
• National Register of Historic Places (National Register), 36 CFR 60.
• National Register of Historic Places, Determinations of Eligibility for Inclusion in the National Register of Historic Places, 36 CFR 63.
• United States Department of the Interior, NAGPRA regulations, 43 CFR 10.
• United States Department of Transportation, Section 4(f) regulations, 23 CFR 771.
• United States Secretary of Interior’s Professional Qualification Standards, 36 CFR 61
• United States Secretary of Interior's Standards for Treatment of Historic Properties, 36 CFR 68

Programmatic Agreement among the Federal Highway Administration, the Advisory Council on Historic Preservation, the California State Historic Preservation Officer, and the California Department of Transportation for Compliance with Section 106 of the National Historic Preservation Act, as It Pertains to the Administration of the Federal-Aid Highway Program in California (PA).  For further guidance, see SER Volume 1, Chapter 38, regarding Interagency Agreements under NEPA Assignment.

• Advisory Council on Historic Preservation (ACHP), Consulting with Tribes in the Section 106 Review Process.
• Advisory Council on Historic Preservation, Protecting Historic Properties: A Citizen's Guide to Section 106 Review. [link downloads a pdf copy]
• Federal Highway Administration (FHWA), Environmental Guidebook, Historical & Archeological Preservation.
• Section 4(f) Policy Paper (FHWA), July 2012
• Federal Highway Administration, Technical Advisory T 6640.8A, Guidance for Preparing and Processing Environmental and Section 4(f) Documents, 1987.
• National Register of Historic Places, Bulletins

California Environmental Quality Act (CEQA), PRC Section 21000, et seq. Governor’s Executive Order W-26-92, 1992
Public Resources Code, Section 5020-5029, 5097 et seq.:

The Public Resources Code includes:
• California Register of Historical Resources (California Register), Section 5024.1
• Emergency Projects, Section 5028
• State-owned Historical Resources, Section 5024, 5024.5
• Archeological, Paleontological, and Historical Sites, Section 5097-5097.6
• Native American Historical, Cultural, and Sacred Sites, Section 5097.7-5097.991

Guidelines for Implementation of CEQA, CCR Section 1500 et seq.

California Department of Transportation, Environmental Handbook (EH), Vol. 2

Policy Memos

• Deputy Directive 58-R1 (DD-58-R1) Preservation of Department's Historical Materials
• 2007 Section 106 Programmatic Agreement Report Jay Norvell (Sept 28, 2007)
• Section 106 Programmatic Agreement Gary R. Winters (December 23, 2003)
• Native American Monitors Gary R. Winters (November 4, 2003)
• Caltrans Director's Policy (DP-28): Working with Native American Communities
  

The 1966 National Historic Preservation Act (NHPA) set forth national policy for recognizing and protecting historic properties. It established the National Register of Historic Places, State Historic Preservation Officers and programs, and the Advisory Council on Historic Preservation (ACHP).
Under Section 106 of the Act, federal agencies are required to take into account the effects of their undertakings on historic properties and provide the ACHP an opportunity to comment on those undertakings. Historic properties are defined in federal law as those properties that are listed in, or meet the criteria for listing in, the National Register of Historic Places.

The implementing regulations for Section 106, 36 CFR 800 set forth specific steps federal agencies must follow in order to take into account the effects of their projects on historic properties. In most cases compliance with Section 106 is carried out by federal agencies through consultation with the State Historic Preservation Officer (SHPO), and in the case of projects involving tribal lands, with the tribal representative. If the tribe has assumed the Section 106 function of the SHPO, and it has a designated Tribal Historic Preservation Officer (THPO) consultation will occur with the THPO in lieu of, or if private lands are also involved, in addition to, the SHPO. In some cases, the ACHP is also involved in a consultation. Public involvement is an essential part of the process, and the public’s participation is actively solicited.

Under 23 USC 326 and 23 USC 327 (see SER Volume 1, Chapter 38, NEPA Assignment), the Department is the responsible federal agency for federally-funded projects on the State Highway System (SHS).  The Department acts to identify and evaluate historic properties and assess project effects on those properties, and serves as the federal agency responsible for compliance with Section 106. On occasion, other federal agencies may be involved, typically as either landowning or permitting agencies. SER, Volume 2 provides a detailed description of the process the Department follows in complying with Section 106.

The Department, FHWA, SHPO, and ACHP have agreed to the terms of a Programmatic Agreement (PA) that streamlines the Section 106 process and authorizes the Department to perform certain activities. For further guidance, see SER Volume 1, Chapter 38, NEPA Assignment, Interagency Agreements.

The National Register of Historic Places administered by the National Park Service under the Department of the Interior, is the nation's official list of historically significant cultural resources. It is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect our historic and archaeological resources. Properties listed in the National Register include districts, sites, buildings, structures, and objects that are significant in American history, architecture, archaeology, engineering, and culture, and that retain integrity. For the purposes of Section 106, properties are evaluated to determine if they meet the criteria for listing in the National Register.

Properties listed in, or determined eligible for listing in, the National Register are historic properties for the purposes of Section 106 compliance. Both listed and eligible properties have equal standing under Section 106.

The National Environmental Policy Act (NEPA) is the broad environmental law that applies to federal agencies and their activities. NEPA specifies that it is the continuing responsibility of the federal government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate federal plans, functions, programs, and resources to preserve important historic, cultural, and natural aspects of our national heritage.

Cultural resources preservation is included as part of the general policy of environmental protection, and NEPA requires that cultural resources be considered in the preparation of NEPA documents.

Meeting the requirements of Section 106 and of NEPA are separate compliance efforts that require coordination. The Section 106 compliance documents that are prepared to meet the requirements of the National Historic Preservation Act also provide the basis for the required assessment of cultural resources, project alternatives, and historic property impacts in the environmental document prepared pursuant to NEPA. The Section 106 concurrence documents are appended to the NEPA document.

Section 4(f) applies to US Department of Transportation projects that involve the “use” (either actual take of land or a less-tangible “constructive use”) of land from historic properties. A Section 4(f) evaluation is required to demonstrate that there is no prudent and feasible alternative to the use, and that all possible planning has been done to minimize harm.

See SER, Volume 1, Chapter 20, Volume 2, Ch. 2-4.8, and Volume 1, Chapter 38, NEPA Assignment for detailed discussions of Section 4(f) and its application to historic properties, and further guidance.

CEQA is a state law, similar to the federal NEPA, that includes cultural resources preservation within its general policy of environmental protection. CEQA requires that the lead agency determine if there are historical resources within a project area that are listed in the California Register of Historical Resources, or if additional properties not yet listed may be historical resources or legally defined unique archaeological sites for purposes of CEQA. If so, the lead agency must then determine if the proposed project has the potential to impact those resources.

Properties either listed in the California Register of Historical Resources or determined by the lead state agency to be historical resources for purposes of CEQA both constitute historical resources for the purposes of CEQA.

Section 5024.1 of the Public Resources Code established the California Register of Historical Resources , the state equivalent to the National Register of Historic Places. The California Register includes all properties listed in or determined eligible for listing in the National Register, California Historical Landmarks from number 770 on, and resources approved for listing by the State Historical Resources Commission. California Register listed properties are historical resources for purposes of CEQA. Lead state agencies are required to determine if additional properties not currently listed in the California Register may also be historical resources for purposes of CEQA.

Cultural resources studies are needed for projects that constitute federal undertakings under Section 106. Federal undertakings are:

• Projects with involvement by a U.S. government agency. Federal involvement includes funding, approvals, permits, licenses, projects on federal land, and relinquishment or disposal of right of way acquired with federal funds. For example, FHWA funding, Army Corps of Engineers permits, or work on US Forest Service land would each constitute federal involvement.
• Projects that meet the definition of undertakings under Section 106. As defined in 36 CFR 800.16(y), an undertaking "means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval." Undertakings are determined based on the type of action proposed, without regard as to whether any potential historic properties might actually be present.

Under the PA, certain classes of undertakings are exempt from cultural resources studies or may be determined not to require cultural resources studies after screening by Department professionally qualified cultural resources staff. See Attachment 2 of the PA for a complete listing of those classes of undertakings.

Federal agencies are responsible for compliance with Section 106 for their undertakings. Under NEPA Assignment, for transportation projects on the SHS that are federally funded or otherwise have federal involvement, the Department now serves as the responsible federal agency.  The Department conducts studies and prepares documentation on FHWA’s behalf under federal law. These studies are used also for the purpose of compliance with NEPA.

The SER, Volume 2 describes the process the Department follows in complying with Section 106. For further guidance, see SER Volume 1, Chapter 38, NEPA Assignment.

Both federal undertakings and state-only projects are subject to compliance with state environmental laws, and under state law, consideration of historical resources is carried out primarily through compliance with CEQA . When state-owned buildings or structures are involved, a project is subject also to PRC 5024 even when the project is exempt from CEQA.

Under CEQA, studies are needed, even in the case of statutory or categorical exemptions, to determine whether historical resources are present within a project area. However, a project usually considered categorically exempt from CEQA may not qualify as an exemption if the project may cause a substantial adverse change in the significance of a historical resource. The lead state agency, which will be the Department for most Department projects, is responsible for compliance with state law and for determining if cultural resources studies are needed.

The Caltrans Environmental Handbook, Voume 2, Chapter 2-7 describes the process the Department follows in complying with state law.

The Environmental Handbook, Vol. 2, provides detailed guidance on the preparation, content, and format of the technical reports, and on the internal review and approval process. Documents prepared by local agencies for compliance with federal and state cultural resources laws and regulations must be submitted to the Department for review by qualified Department cultural resources personnel.

Cultural resources scoping activities under 36 CFR 800.3 are carried out in this stage. They include:

• Determining if the proposed activity is an undertaking subject to Section 106 (EH, Vol. 2, Ch. 2-2.2)
• Identifying consulting parties (EH, Vol. 2, Ch. 2-4.6)
• Initiating Native American consultation (EH, Vol. 2, Ch. 3-5)
• Planning for public involvement (EH, Vol. 2, Ch. 2-4.6)
• Establishing an area of potential effects (APE) or study area (EH, Vol. 2, Ch. 2-3.3 and Ch. 4-3)
• Conducting prefield research and documenting known resources (EH, Vol. 2, Ch. 2-3.3 and Ch. 4-4)
• Determining studies required and estimating cost and schedules (EH Vol. 2, Exh.2.3). This information should be included in the Preliminary Environmental Analysis Report (PEAR) prepared as part of the Project Initiation Document (PID).

The “Guidelines for the Preparation of Project Study Reports,” dated November 3, 1999, stipulate that PSRs and Project Study Report equivalents contain an “inventory of environmental resources, identification of potential environmental issues and anticipated environmental processing type. Potential mitigation requirements and associated costs should also be identified.”

For local assistance projects these requirements are met through completion of the Preliminary Environmental Assessment (PES) form . The information required for the PES satisfies the environmental requirement for the PSR equivalent. Documentation is required to support checking no on item 25 of the PES form, and it must be reviewed by qualified Department cultural resources staff to determine whether or not the undertaking requires further studies.

Cultural resources identification and evaluation efforts (36 CFR 800.4) , and assessment of effects (36 CFR 800.5) are undertaken at this stage. These include:

• ASR - Archaeological Survey Report (EH Vol. 2, Ch. 5-4.5 and Exh.5.1)
• HASR - Historic architectural Survey Report (now subsumed into the HRER) (EH Vol. 2, Ch. 7 and Exh. 6.2 )
• XPI - extended phase 1 archaeological study (EH Vol. 2, Ch. 5-5, Ch. 6-6, Exhibits 5.2, 5.3, 5.4, and 5.5)
• PH II - Phase 2 Archaeological Study (EH Vol. 2, Ch. 5-6, Ch. 6-7.2, Exh. 5.4)
• HRER - Historic Resource Evaluation Report (EH Vol. 2, Ch. 7 and Exh. 6.2)
• Native American Consultation (EH Vol. 2, Ch. 3)
• FOE - Finding of Effect (EH Vol. 2, Ch. 2-3.8)
• Draft Section 4(f) Evaluation (EH Vol. 2, Ch. 2-4.8)
  

The HPSR (EH Vol. 2, Exh.2.8) or HRCR (EH Vol. 2, Exh.215) serves as the cover document for the studies outlined above and provides the basic document for consultation with the SHPO and other parties.

The draft NEPA document contains a discussion demonstrating that historic resources have been identified and evaluated for each alternative in accordance with the requirements of 36 CFR 800.4. The document briefly summarizes the methodologies used in identifying historic properties. If no surveys were performed, the document must explain why not. The number and type of historic properties is described, and the impacts of each alternative discussed, including the proposed mitigation measures for each resource. This information is drawn directly from the HPSR, however the specific locations of archaeological sites or places identified by Native Americans as having religious or cultural significance are not shown in documents provided to the general public.

The draft document needs to show evidence of coordination with the SHPO on the adequacy of the identification efforts, significance of identified resources, eligibility determinations, and effects. Correspondence and agreements with SHPO and/or the Advisory Council on Historic Preservation should be appended to the environmental document.

If there is a finding of no historic properties affected (36 CFR 800.4[d][1]) , consultation may be complete at this stage. Under the PA, when there are no properties present the project us de facto approved and the appropriate survey documents should be placed in the project file. Where properties are present, and are either evaluated as not significant, or a finding is made that the project will not affect them, documentation must be forwarded to SHPO to provide SHPO an opportunity to comment. Concurrence can be effected by either: 1) a SHPO concurrence letter; or 2) documentation of the fact that SHPO has been provided an opportunity to comment and did not do so within a 30 day period.

When eligible properties are present, an assessment must be made of the projects effects to those properties. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property's eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative (36 CFR 800.5 [a][1]) .

Proposed findings of no adverse effect (36 CFR 800.5[d][1]) or adverse effect (36 CFR 800.5[d][2]) must be presented in the draft environmental document and SHPO comment requested. When an environmental document is being circulated for public review, final concurrence from SHPO may be held until after completion of the public review and comment period. Although 36 CFR 800.8(c) provides that a draft environmental document may be used to satisfy the requirements of Section 106, this approach is not used by the Department and FHWA because of its potential to create an unwieldy document and delay the review process.

A draft CEQA document includes all of the information described above. In addition, it must describe any properties not eligible for the National Register of historic places, but listed on the California Register of Historical Resources, or officially designated landmarks under local ordinances and resolutions, which may or may not be listed on the California Register.

In some instances, conditions, such as monitoring or establishment of Environmentally Sensitive Areas (ESAs) (EH Vol. 2, Ch. 2-4.3), may be proposed in order to reach a finding of no adverse effect under 800.5(b), or no adverse change to a historical resource under CEQA. The proposed conditions must also be summarized in the NEPA or CEQA environmental document.

In instances where there may be several alternatives with large land areas under consideration and/or where access is restricted, a phased approach to completing identification and evaluation efforts may be implemented (36 CFR 800.4[b][2]) . This approach still requires consultation and coordination with the SHPO and other consulting parties and agreements reached must be summarized in the environmental document.

Efforts to resolve adverse effects (36 CFR 800.6) and document completion of Section 106 compliance and other applicable state and federal requirements are undertaken at this stage. These may include:

• SHPO concurrence on adverse effects finding (EH Vol. 2, Ch. 2-3.8)
• Execution of a Memorandum of Agreement (MOA) with consulting parties, including indian tribes, to resolve adverse effects (EH Vol. 2, Ch. 2-3.9)
• Data recovery plans (EH Vol. 2, Ch. 5-8.1)
• Treatment plans (EH Vol. 2, Ch. 6-12.2)
• Planning for subsequent discoveries (36 CFR 800.13 [a] and EH Vol. 2, Ch. 2-4.4)
• Final 4(f) evaluation for preferred alternative (EH Vol. 2, Ch. 2-4.8)

The final federal or joint environmental document must demonstrate that the requirements of 36 CFR 800 have been met. If the final environmental document is an EIS and the preferred alternative has no effect on historic properties eligible for the National Register, coordination with and agreement by the SHPO should be documented by either: 1) a SHPO concurrence letter; or 2) the fact that the SHPO was provided an opportunity to comment and failed to do so within the allotted 30 day timeframe. When the preferred alternative has an effect on resources eligible for the National Register, the final EIS must include either a finding of no adverse effect (36 CFR 800.5[b]) , or an executed MOA (36 CFR 800.6 [c]) . In the rare circumstance when FHWA is unable to conclude an agreement, the Advisory Council on Historic Preservation’s comments to FHWA, and FHWA’s comments in response, must be included.

Correspondence and agreements with SHPO and/or the Advisory Council on Historic Preservation are referenced and appended to the environmental document. Technical reports and other materials with specific locations of archaeological sites or places identified by Native Americans as having religious or cultural significance are not shown in documents provided to the general public. All commitments to mitigate or reduce adverse effects to historic properties under Section 106 or substantial adverse change to historical resources under CEQA must be presented in the final environmental document.