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Last Updated: Tuesday, September 2, 2014 2:25 PM

Chapter 28 - Cultural Resources

WHAT DOES THIS TOPIC INCLUDE?

This chapter discusses the requirements of Section 106 of the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), the California Environmental Quality Act (CEQA), and other federal and state laws regarding cultural resources in the environmental review process.

CULTURAL RESOURCES DECISION TREE

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LAWS, REGULATIONS AND GUIDANCE

See also SER, Volume 1, Chapter 1 - Federal Requirements, Chapter 2 - State Requirements, and Chapter 38, NEPA Assignment

Federal Laws

Federal Regulations

Federal Guidance

State Laws

State Regulations

State Guidance

Policy Memos

DEFINITION OF CULTURAL RESOURCES

Cultural resources encompass archaeological, traditional, and built environment resources, including but not necessarily limited to buildings, structures, objects, districts, and sites. Qualified cultural resources professionals, consulting with their peers, Native Americans, subject matter experts, or review authorities as necessary, conduct studies of those cultural resources that could have potential to possess significance and that could be affected by transportation projects.

Not every feature that might be considered a cultural resource requires study. Certain properties as a type are minor, fragmentary, or ubiquitous features that lack potential for significance and are exempt from evaluation. Additional properties with limited potential may be determined exempt upon review by appropriately qualified cultural resources staff. Attachment 4 of the Programmatic Agreement (PA) lists properties that are, or may be determined to be, exempt from evaluation. At the same time, it is essential to be aware that not all potentially significant cultural resources are visible or apparent prior to conducting technical studies or consultations:

  • Archaeological resources may be buried, without surface features, or inconspicuous to the untrained eye.
  • Sites of important events, traditional cultural places, or places associated with an important person may lack obvious physical characteristics.
  • Minor or ordinary features such as fences, ditches, or tree rows may require study when they could constitute part of a larger significant property, such as a potential historic district or landscape.
  • Some transportation facilities themselves, including roads and railroads, may have potential for significance, and some will require study. However, 23 USC 103 CC, among other things: 1) exempts the Interstate from being considered a historic site under 49 USC 303 regardless of whether or not they are already listed on, or eligible for listing on, the National Register of Historic Places; 2) requires the Secretary of Transportation to determine, through administrative process established for exempting the Interstate System from Section 106 of the National Historic Preservation Act of 1966, those sections that possess national or exceptional significance; and 3) specifies that States shall not be prohibited from carrying out construction, maintenance, or other activities on the Interstate upon compliance with other acts.

It is not always a simple matter to identify and evaluate cultural resources that could possess historical significance and that therefore require consideration under federal and state laws and regulations. Successful completion of this process requires the involvement of, and exercise of professional judgment by, appropriately qualified cultural resources professionals.

IDENTIFICATION OF REGULATIONS AND AGENCIES

Federal:

Section 106 of the National Historic Preservation Act

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.

National Register of Historic Places

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.

National Environmental Policy Act (NEPA)

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.

NEPA and Section 106

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)

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 Vol. 1, Chapter 20, “Section 4(f) Resources and Related Requirements,” and Vol. 1, Chapter 38, "NEPA Assignment," and Vol. 2, Cultural Resources for detailed discussions of Section 4(f) and its application to historic properties, and further guidance.

State:

The California Environmental Quality Act (CEQA)

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.

The California Register of Historical Resources

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.

DETERMINING THE NEED FOR CULTURAL RESOURCES STUDIES

Federal projects:

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

State projects:

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 SER, Vol. 2, Cultural Resources describes the process the Department follows in complying with state law.

INTERAGENCY COORDINATION AND CONSULTATION

Section 106 requires that federal agencies provide the ACHP an opportunity to comment on the effects of their undertakings on historic properties. This opportunity to comment takes place through a consultation process, as described in 36 CFR 800. On NEPA Assignment projects, the consulting parties consist of SHPO and the Department. The ACHP is typically involved directly only when there is a request from or a disagreement among the other consulting parties. In addition, consulting parties may include THPOs, Indian tribes, local governments, and other interested individuals and organizations. See the SER, Vol. 2, Cultural Resources for further information on working with consulting parties.

Under the PA, FHWA is less directly involved in certain parts of the consultation process, allowing the Department to act on its behalf under specified circumstances.

CEQA has no formal consultation process parallel to Section 106, instead placing responsibility on the lead state agency. However, if state-owned historic properties could be affected by a project, the state agency must consult SHPO in compliance with PRC section 5024.5 . This consultation should precede the preparation of environmental documents. The SER, Vol. 2, Cultural Resources describes the procedures for complying with PRC 5024.5.

PUBLIC INVOLVEMENT

Public involvement is a requirement of Section 106, and the public’s views are essential for making informed decisions. Federal agencies are charged with providing information and seeking public comment. At the state level, CEQA prescribes public comment periods for environmental documents and strongly encourages early consultation with interested or affected parties.

Generally, public participation conducted through the Department's and FHWA’s environmental compliance procedures meets the public participation requirements of both federal and state law.
See the SER, Vol. 1, Ch. 3 for more information on public participation.

REPORTING

The principal report used to present the findings of cultural resources studies for federal undertakings is the Historic Property Survey Report (HPSR), as described in the SER, Vol. 2, Cultural Resources. For state-only projects, the equivalent document is the Historical Resources Compliance Report (HRCR). These reports summarize the findings of technical studies such as historical and archaeological survey reports. They are used to document the identification and evaluation of potential historic properties for the purposes of Section 106 and CEQA compliance respectively. For joint state and federal projects, the HPSR will generally satisfy the requirements of both levels.

The HPSR can also be used to present a finding of no historic properties affected, but when a project will have an effect on historic properties, a separate Finding of Effect (FOE) document must be prepared. An FOE will present a finding of either no adverse effect or adverse effect. When a project will have an adverse effect, the consulting parties develop a memorandum of agreement (MOA) to take project effects into account.
The SER, Vol. 2, Cultural Resources provides descriptions of the documents used for reporting under both federal and state laws.

The Section 106 compliance documents 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.
Under CEQA, a project that may cause a substantial adverse change in the significance of a historical resource is a project that may have a significant effect on the environment. If that impact cannot be mitigated below a level of significance, an environmental impact report must be prepared for the project.

Reports prepared for Section 106 and CEQA compliance are public documents, referenced in the draft and final environmental document. However, the location of archaeological sites is restricted information and is not to be made public. It is critical that findings and determinations documented in an HPSR or HRCR are consistent with those presented in a project’s NEPA or CEQA document.

Technical Report Preparation, Processing, and Approval

The SER, Vol. 2, Cultural Resources, 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.

PREPARER QUALIFICATIONS

All cultural resources technical studies must be conducted by, or under the direct supervision of, persons who meet the Secretary of the Interior’s professional qualifications standards (36 CFR Part 61) in the appropriate discipline. Such staff are deemed Professionally Qualified Staff (PQS). Preparers’ qualifications must be stated in technical studies and environmental documents. The standards for Department PQS are available in Attachment 1 of the PA.

Information Needed for Project Development Phase

Cultural resources studies are coordinated with, and are generally conducted parallel to, other environmental studies and document preparation during the project development process. However, the requirements of Section 106 must be met for all actions that constitute undertakings, even if they are categorically excluded from NEPA. Under CEQA, a categorical exemption does not apply if a project that would otherwise be categorically exempt would cause a substantial adverse change in a historical resource. Studies may be necessary to support a finding that no adverse change would occur and that a CE is appropriate. Although state-only projects and federal undertakings may be subject to different review requirements, the scale, nature, and quality standards of cultural resources studies are essentially the same for both. Surveys and evaluations that meet federal standards generally satisfy requirements under state law. In all cases, it is essential that the information provided be complete and accurate, and that it support appropriate decision making at each step in the project development process.

The major stages for cultural resources compliance studies include scoping, identification, assessment of effects, and resolution of effects. Detailed guidance on these procedures is presented in SER, Vol. 2, Cultural Resources.

Information for Project Initiation

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.
  • Identifying consulting parties.
  • Initiating Native American consultation.
  • Planning for public involvement.
  • Establishing an area of potential effects (APE) or study area.
  • Conducting prefield research and documenting known resources.
  • Determining studies required and estimating cost and schedules. 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.

Information for the Draft Environmental Document

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.
  • HASR - Historic architectural Survey Report (now subsumed into the HRER).
  • XPI - Extended Phase 1 Archaeological Study.
  • PH II - Phase 2 Archaeological Study.
  • HRER - Historic Resource Evaluation Report.
  • Native American Consultation.
  • FOE - Finding of Effect.
  • Draft Section 4(f) Evaluation.

The HPSR or HRCR 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) 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.

Information for the Final 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.
  • Execution of a Memorandum of Agreement (MOA) with consulting parties, including Indian tribes, to resolve adverse effects.
  • Data recovery plans.
  • Treatment plans.
  • Planning for subsequent discoveries.
  • Final 4(f) evaluation for preferred alternative.

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.

PERMIT REQUIREMENTS

Permits may be required for access to conduct archaeological investigations on private lands, or on public lands under the control of other agencies. Studies on federal lands such as the US Forest Service, Bureau of Land Management, or National Park Service Lands may require an ARPA or special use permit.
Agreement documents such as MOAs are legally binding and their stipulations regarding mitigation, treatment of properties, and future discoveries must be implemented and carried out by the federal agency and the Department.

ACTIVITES THAT MAY OCCUR AT THE PROJECT DESIGN PHASE

Changes in project design or the addition of new or modified alternatives may require additional Section 106 review if changes will involve areas not previously surveyed for historic properties or if potential project effects change. Project changes that expand a project area may necessitate preparation of a supplemental HPSR. In cases where a MOA has been concluded, project changes or alterations may necessitate an amendment to the MOA pursuant to 36 CFR 800.6(c) (7) and (8). Substantial changes in project design or the addition of new or modified alternatives also may require additional CEQA review.

Qualified Department cultural resources staff review the PS&E to ensure that the findings made in the environmental documents are still accurate and that they are consistent with commitments made for protection of cultural resources. They are also responsible for preparation or review of contract special provisions to implement commitments such as monitoring.

Prior to construction and typically during the right of way phase, mitigation activities will be carried out. These may include implementation of data recovery plans on archaeological sites, Historic American Buildings Survey/Historic American Engineering Record (HABS/HAER) recordation of historic structures, or other mitigation commitments. While in some cases it may be necessary to wait for right of way to be obtained in order to carry out mitigation commitments, it is important to allow for ample time to complete necessary activities prior to the start of construction. Exceptions may occur where specifically provided for in a treatment plan or other stipulation of a MOA. Mitigation such as data recovery and HABS/HAER recordation usually requires analysis, report writing, or other activities that may extend beyond completion of construction. Care should be taken that funding mechanisms remain in place until all mitigation, including final reporting, is complete.

ACTIVITIES THAT MAY OCCUR DURING CONSTRUCTION

Any activities that affect a previously unidentified property, or affect a known historic property in an unanticipated manner, require that construction activity be stopped and all reasonable measures taken to avoid or mitigate harm. If such discoveries have not been provided for in accordance with a treatment plan or stipulation under a MOA, then procedures under 36 CFR 800.13 must be followed. If human remains are encountered, provisions of the Health and Safety Code (7050.5 and 7054) and Public Resources Code (5097.98) apply, and on federal and tribal lands, regulations implementing the Native American Graves and Repatriation Act (NAGPRA) also apply. For procedures to follow, see the SER, Vol. 2, Cultural Resources.

CEQA (PRC section 21083.2[i]) provides that lead agencies may make provision for archaeological sites discovered during construction. Such provisions are usually included among the mitigation proposed for a project in the environmental document. While this provision applies only to archaeological sites, it is good CEQA practice to apply the same consideration to all historic properties. The SER, Vol. 2, Cultural Resources provides additional information regarding late discovery under state law.

 

(Last content update: 09/02/14, JH)