Federal Mandates: NEPA and NHPA
(two-week module)
Description: The National Environmental Policy Act and the National Historic Preservation Act; the Advisory Council on Historic Preservation; SHPOs and THPOs; the National Register of Historic Places; the Section 106 process.
Learning Objectives:
• Evaluate the workings of the NEPA and NHPA.
• Assess the importance of NHPA in creating an infrastructure for preservation in the country.
• Examine the National Register nomination form.
• Analyze the Section 106 process in detail.
Readings:
Text of National Historic Preservation Act of 1966, as amended
Text of National Environmental Policy Act of 1969.
Advisory Council on Historic Preservation. 36 CFR Part 800. Protection of Historic Properties; Final Rule. Federal Register, Tuesday, Dec. 12, 2000 (77698-77739).
King, Cultural Resource Laws & Practice, 35-58.
King, Federal Planning and Historic Places, 11-100.
Neumann and Sanford, Cultural Resources Archaeology, 27-46.
U.S. Department of the Interior, National Park Service, National Register Bulletin 16A: How to Complete the National Register Registration Form (1991). Available at http://www.cr.nps.gov/NR/publications/bulletins/nrb16a/
I. National Environmental Policy Act of 1969
A. Purpose: "Congress. . . declares that it is the continuing policy of the Federal Government. . . to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans" [Sec. 101 (a)].
". . . it is the continuing responsibility of the Federal Government to use all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may. . . (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;" [Sec. 101 (b)].
B. Section 102 instructs all federal agencies to utilize a systemic, interdisciplinary approach for the purpose of identifying the environmental impact of major Federal actions significantly affecting the quality of the human environment and to list alternatives to the proposed action. This is the requirement for an Environmental Impact Statement (EIS).
C. MFASAQHE: The threshold for doing an EIS is "major federal actions significantly affecting the quality of the human environment," or MFASAQHE.
D. CEQ: "A category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of these regulations" (40 CFR 1508.4). Under this rule, agencies decide which actions do not have the potential to become MFASAQHEs and require analysis.
E. Environmental Assessments (EA): Preliminary analysis is necessary to determine if a proposed federal action rises to the threshold of a MFASAQHE; this is an EA, which leads to one of two determinations, either a "finding of no significant impact" (FONSI), or the conclusion that an EIS is necessary.
F. The EIS: If an EIS is judged necessary, a Notice of Intent (NOI) must be published in the Federal Register. Next, what the EIS needs to involve must be determined through appropriate scoping, including the invitation of interested parties to participate; identification of significant issues; allocation of work assignments; and identification of other review requirements. The Draft EIS should include the following format: cover sheet, summary; statement of purpose and need; description of alternatives; including "No Action"; description of environment affected by each alternative; discussion of environmental consequences of each alternative; list of preparers; appendices as needed.
G. The Draft EIS is circulated to appropriate agencies, Indian tribes, local governments, and the public. Comments are considered and then a Final EIS is prepared, taking into account the comments received. The Final EIS is considered by whoever makes the decision. Once a decision is made, a Record of Decision must be published, including a description of what the agency has decided to do about mitigating project impacts.
H. Comments: NEPA has given rise to the veritable industry of environmental consulting that has developed since its passage. Impacts on cultural resources are only one element of a NEPA Environmental Impact Statement. Large projects frequently result in many volumes of NEPA analysis, covering impacts on such topics as air quality, water quality, economy, endangered species, etc. Archaeological and historical surveys frequently appear in such volumes as appendices listed as "Archaeological and Historic Resources."
II. National Historic Preservation Act of 1966, as amended
The NHPA is the cornerstone of the U.S. system of cultural resource management. It created an infrastructure for preservation that has developed its own full-blown bureaucracy, administrative organization, and regulations. Although first and foremost a federal mandate—one that requires federal agencies to consider impacts on cultural resources—its influence on state and local preservation, and even on private land development, has been enormous. NHPA is responsible for the creation of the National Register of Historic Places, the Advisory Council on Historic Preservation, State Historic Preservation Offices, Tribal Historic Preservation Offices, a grant-in-aid program for the states, and the National Center for Preservation Technology and Training (www.ncptt.nps.gov/). Last but not least, NHPA's famous Section 106 revolutionized preservation practice in the United States, and is responsible in large measure for the current profession of CRM archaeology.
A. National Register of Historic Places (NR): ". . . a national register of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, and culture" [Sec. 101(a)(1)]. The NR is part of the National Park Service; there are currently about 77,000 listings of properties in the NR, including all the historic sites of the National Park system and more than 2,300 National Historic Landmarks (http://www.cr.nps.gov/nr/).
1) Properties are nominated to the NR on the basis of their national, state, or community significance using the National Register Criteria for Evaluation (36 CFR 60.4):
"The quality of significance in American history, architecture, archeology, engineering and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and: A. that are associated with events that have made a significant contribution to the broad patterns of our history; or B. that are associated with the lives of persons significant in our past; or C. that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or D. that have yielded, or may be likely to yield, information important in prehistory and history."
2) Class Discussion Topic: After reviewing the NR criteria, invite the students to think of sites or resources that might merit inclusion within the four classes.
3) Class Discussion Topic: National Register Nomination Forms. Divide the class into working groups of two or three students each. Give each group a copy of a different completed National Register nomination form and give them 15 minutes to review the format and contents. Then begin a discussion about the forms, focusing on the essential elements of the NR nomination: What types of property are listed? How are the boundaries defined? How is the significance of the property described and documented? Under which NR criteria for evaluation is the property eligible? Ideally, you should provide completed NR forms for different types of resource (e.g., archaeological site, historic house, traditional property) and both individual and multiple nominations.
The National Park Service provides extensive online information about the National Register (http://www.cr.nps.gov/nr/index.htm), including forms, instructions, and a large group of NR bulletins that offer guidance for evaluating and registering various types of cultural properties.
B. Advisory Council on Historic Preservation: The purpose of ACHP is to advise the president and Congress on historic preservation matters; to facilitate coordination of preservation in the public and private sectors; to encourage public interest in historic preservation; to advise concerning state and local preservation legislation; and to encourage training.
One of the most important roles of ACHP is to participate in the Section 106 process (see below). ACHP produced the regulations for NHPA; the current version went into effect in January 2001. ACHP has a very useful website (http://www.achp.gov/) that contains news, copies of the regulations, and numerous other documents that offer guidance and advice on Section 106 and other preservation-related topics.
C. SHPOs/THPOs: The original version of NHPA urged states to create State Historic Preservation Offices to administer the states' historic preservation program. At the same time, the law offered an incentive to the states by creating a historic preservation fund and grant-in-aid program that would offer federal monies to states that had SHPOs and had developed statewide preservation plans. The 1992 amendments of the law allowed Indian tribes to create their own Tribal Historic Preservation Offices (THPOs) to assume the duties of the SHPO on tribal lands. Today every state and 8 territories, commonwealths, and the District of Columbia have SHPOs (http://www.ncshpo.org/stateinfolist/fulllist.htm) and more than 30 Indian tribes have THPOs (http:www.cr.nps.gov/hps/tribal/thpo.htm). For more information, see the website of NCSHPO, the National Conference of State Historic Preservation Offices (http://www.ncshpo.org/stateinfolist).
III. Section 106
A. Background: If NHPA is the cornerstone of the U.S. preservation system, then Section 106 is the cornerstone of NHPA. This single paragraph, more than any other document, gave rise to the rise of CRM in the United States and continues to drive the field. Its words are deceptively simple, and its obligations to "take into account" and "afford. . . a reasonable opportunity to comment" carry no obligation to preserve anything, and are not backed up by any punishment for non-compliance. Yet the law has been remarkably, even surprisingly, effective:
"The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking."
Notice how several key elements of NHPA come together in Section 106, including the NR and ACHP. The SHPOs/THPOs will be brought into the picture in the implementing regulations, which are described below (Subpart B, 800.3-800.13).
B. The Section 106 Process: The following rather detailed summary of the Section 106 regulations boils down what will seem to the student to be a convoluted and complex procedure. Actually it is. But those who end up in the field better have a solid grasp of Section 106. The regulations went into effect on January 11, 2001.
1) Initiation of the Section 106 Process (800.3)
a) Agency official determines if the proposed federal action is an undertaking (i.e., a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including federally funded, assisted, permitted, licensed, and approved actions). If the undertaking does not have the potential to cause effects on historic properties, Section 106 obligations cease.
b) Agency official coordinates the Section 106 process with other appropriate reviews and authorities, including NEPA, NAGPRA, ARPA, and the American Indian Religious Freedom Act.
c) Agency official determines the appropriate SHPO(s)/THPO(s) to be involved in the Section 106 process. If historic properties on tribal land may be affected, and there is a THPO for the Indian tribe, consultation is with the THPO instead of the SHPO.
d) If the SHPO/THPO fails to respond within 30 days, the agency official may proceed to the next step in the process or consult with the Advisory Council in lieu of the SHPO/THPO. If the SHPO/THPO later reenters the process, the agency does not have to reconsider previous findings.
e) On tribal lands where there is no THPO, consultation will be with the Indian tribe on the same basis as with the SHPO.
f) The agency official should plan for involving the public in the Section 106 process, and identify other parties entitled to be consulted, including local governments and Indian tribes or Native Hawaiian organizations with religious and cultural ties to the properties in the area of potential effects.
2. Identification of Historic Properties (800.4)
a) In consultation with the SHPO/THPO, the agency official determines and documents the area of potential effects (APE) (i.e., the area(s) within which an undertaking may directly or indirectly cause deleterious alterations in the character of historic properties).
b) Review existing information on historic properties within the APE.
c) Seek information as appropriate from consulting parties and others on historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties.
d) Gather information from any Indian tribe or Native Hawaiian organization about properties, including those that may be of religious and cultural significance to them and may be eligible for the National Register.
e) Identify historic properties based on the information gathered above and in consultation with the SHPO/THPO and Indian tribes/Native Hawaiian organizations that may attach religious and cultural significance to properties within the APE.
f) Evaluate historic significance: In consultation with the SHPO/THPO and Indian tribes/Native Hawaiian organizations that may attach religious and cultural significance to identified properties, apply the National Register criteria (36 C.F.R. part 63) to properties identified within the APE. If the agency official determines that any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for Section 106 purposes. If both agree that the criteria are not met, the property is considered not eligible. A determinaton of eligibility from the Interior Secretary may be sought if the agency official and SHPO/THPO do not agree; or if the Advisory Council or Secretary so request; if an Indian tribe/Native Hawaiian organization that attaches religious or cultural significance to a property off tribal lands does not agree, it may ask the Advisory Council to request the agency official to obtain a determination of eligibility.
g) Results of identification and evaluation: If agency official finds either there are no historic properties present, or there are historic properties present but the undertaking will have no effect on them, the official provides documentation of this finding to the SHPO/THPO, notifies all consulting parties, and makes the documentation available to the public. If the SHPO/THPO or Advisory Council do not object within 30 days, Section 106 obligations are fulfilled. If the agency official finds that there are historic properties that may be affected by the undertaking, or the SHPO/'THPO or Advisory Council object to the agency's earlier finding (above), the agency official shall notify all consulting parties, invite their views on the effects and assess adverse effects, if any.
3) Assessment of Adverse Effects (800.5)
a) Apply Criteria of Adverse Effect: In consultation with the SHPO/THPO and any Indian tribe/Native Hawaiian organization that attaches religious and cultural significance to identified historic properties, the agency official applies the criteria of adverse effect to historic properties within the APE, considering any views provided by the consulting parties and public.
b) Criteria of Adverse Effect: 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. Examples of adverse effects include physical destruction or damage; restoration, rehabilitation, repair or other alteration; of property from its historic location; change in the character of property's use or physical features of the setting; introduction of visual, atmospheric, or audible elements that diminish the property's integrity; neglect that causes deterioration; and transfer, lease, or sale of property out of federal ownership or control without adequate preservation controls.
c) Finding of No Adverse Effect: In consultation with the SHPO/THPO, the agency official may propose a finding of no adverse effect when the undertaking's effects do not meet the Criteria of Adverse Effect or if the undertaking is modified or conditions are imposed to avoid adverse effects. All consulting parties must be so notified.
d) Consulting Party Review: The SHPO/THPO has 30 days to review the finding. The agency may proceed if the SHPO/THPO agrees with the finding or does not respond within 30 days. If the SHPO/THPO or any consulting party disagrees with the finding, the agency official shall either consult to resolve the disagreement or request the Advisory Council to review the finding. The Council may also request to review the finding on its own initiative. Within 15 days, the Council will notify the agency official of its determination as to whether the adverse effect criteria have been correctly applied.
e) Results of Assessment: For a finding of no adverse effect, the agency official records the finding and makes information available to the public on request. Implementation of the undertaking in accordance with the finding as documented fulfills agency responsibilities under Section 106. If an adverse effect is found, the agency official consults further to resolve the adverse effect.
4) Resolution of Adverse Effects (800.6)
a) The agency official consults with the SHPO/THPO and other consulting parties to develop alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties. The agency may request the Advisory Council to participate, and the SHPO/THPO and other consulting parties may independently request Council participation.
b) Resolve Adverse Effects: Without Advisory Council participation, the agency official consults to avoid, minimize, or mitigate adverse effects. If there is agreement on how to do this, the agency official and SHPO/THPO execute a memorandum of agreement and submit it, along with documentation, to the Council before the undertaking may proceed. If the agency and SHPO/THPO fail to agree how to resolve the adverse effect, the agency official must invite the Council to join the consultation. If the Council participates, and agreement is reached, the agency, SHPO/THPO, and Council execute a memorandum of agreement.
5) Failure to Resolve Adverse Effects (800.7)
a) If, after consultation, the agency, SHPO/THPO, or the Council determines that further consultation will not be productive, they may terminate consultation, notify the other consulting parties, and provide the reasons for terminating in writing. If the agency terminates consultation, it requests the Council to comment and notifies all consulting parties. If the SHPO terminates consultation, the agency and Council may execute a memorandum of agreement without the SHPO. If a THPO terminates consultation regarding properties on tribal land, the Council comments. If the Council terminates consultation, it notifies the agency and all consulting parties. The head of the agency must take into account the comments of the Council in reaching a final decision on the undertaking. The agency head's decision must be documented and communicated to all consulting parties and the public.
C. Points for Discussion:
1) Few cultural resource archaeologists will participate in all, or even most, aspects of the Section 106 process. Consulting archaeologists doing Section 106 compliance work for agencies will do their surveys as part of the agency's obligation to identify and evaluate historic properties, or in fulfillment of a memorandum of agreement that calls for a data recovery project. Those working as agency archaeologists or SHPO/THPO staff will, however, be involved in much of the larger process of compliance, including consultation and determination of adverse effects.
2) Why does Section 106 result in so much work on private land? Mostly because of NHPA's jurisdiction over projects that are federally funded, licensed, or approved. A few examples:
a) A state highway department builds a new road using funds from the Federal Highway Administration. Most of the work involves the purchase of private property. Federal agency funding triggers NHPA.
b) A private company builds a natural gas pipeline on private property. Natural gas transmission is regulated by the Federal Energy Regulatory Commission, which must issue a permit for the project, which triggers NHPA.
3) Notice the lack of enforcement provisions in NHPA. The law does not mandate preservation, only a process in which preservation is considered in a public way. In a sense, reluctant federal agencies are shamed into doing preservation rather than being forced into it.
4) NHPA mandates a process, not preservation. The process stresses (however imperfectly) participation by interested parties and the general public and aims at achieving consensus.