# Presentation: 911517

## Cultural Resources in Transportation Projects

- Joseph R. Trnka
- June 22, 2002

## Major Cultural Resource Acts

- The National Historic Preservation Act (NHPA)
- The Historic Sites Act (HSA) of 1935
- Section 4(f) of the Department of Transportation Act
- The Antiquities Act of 1906
- The Archaeological Resources Protection Act (ARPA)
- The Archaeological Data Preservation Act of 1974
- The Abandoned Shipwrecks Act
- The American Indian Religious Freedom Act (AIRFA)
- The Native American Graves Protection and Repatriation Act (NAGPRA)

## Major Stakeholders

- Advisory Council on Historic Preservation
- State Historic Preservation Officer (SHPO)
- Tribal Historic Preservation Officer (THPO)
- Council on Environmental Quality
- Environmental Protection Agency
- National Park Service
- National Trust for Historic Preservation
- Other Interested Parties & the Public

## Historic Property

- 	“Historic Property is defined by Section 301[5] of the National Historic Preservation Act to consist of “any prehistoric or historic district, site, building, structure or object included in, or eligible for, inclusion on the National Register, including artifacts, records, and material remains related to such property.”

## Eligibility Criteria

- A.	History
- B.	Significant Person
- C. 	Architecture or workmanship
- D. 	Has already or likely to yield 	important information

**Notes:**
A.	Associated with events that have made a significant contribution to the broad patterns of our history.
B.	Associated with the lives of persons significant in our past.
C.	Embody the distinctive characteristics of a type, period, or method of construction, or represent the work of a master, possess high artistic values, or represent a significant and distinguishable entity whose components may lack individual distinction.
D.	Yielded, or may be likely to yield, information important in prehistory or history.

## Criteria Considerations

- Religious property
- Moved property
- C.	Birthplace or grave
- D.	Cemetery
- E.	Reconstructed property
- F.	Commemorative property
- G.	Property achieving significance within the past fifty years

**Notes:**
A.	A religious property is eligible if it derives its primary significance from architectural or artistic distinction or historic importance.
B.	A property removed from its original or historically significant location can be eligible if it is significant primarily for architectural value or it is the surviving property most importantly associated with a historic person or event.
C.	A birthplace or grave of a historical figure is eligible if the person is of outstanding importance and if there is no other appropriate site or building directly associated with his or her productive life.
D.	A cemetery is eligible if it derives its primary significance from graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events.
E.	A reconstructed property is eligible when it is accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan and when no other building or structure with the same associations has survived. All three of these requirements must be met.
F.	A property primarily commemorative in intent can be eligible if design, age, tradition, or symbolic value has invested it with its own historic significance.
G.	A property achieving significance within the past fifty years is eligible if it is of exceptional importance.

## Integrity

- To be listed on the National Register of Historic Places, a property must not only be significant under the criteria, but it must also have integrity.
- Integrity is the ability of a property to convey its significance.
- To retain integrity a property must possess several, and usually most, of the seven aspects of integrity.

## Seven Aspects of Integrity

- Location
- Design
- Setting
- Materials
- Workmanship
- Feeling
- Association

## Section 106

- Section 106 of the NHPA requires federal agencies to “take into account” the effects of their actions on historic properties; and
- “Afford the Advisory Council . . . a reasonable opportunity to comment” on their actions.
- See 36 CFR 800, Protection of Historic Properties, for detailed discussion

## The Section 106 Process

- Agency Official Initiates the Section 106 Process
- Identify Historic Properties
- Assess Effects
- Resolve Adverse Effects
- Council Comment if parties fail to agree

## Section 106 Process Initiation

- Establish the undertaking
- Identify and consult with the appropriate SHPO/THPO
- Plan to involve the public
- Identify other consulting parties
- “No undertaking/no potential to cause effects” – conclude Section 106 process
- “Undertaking is a type that might affect historic properties” – continue Section 106 process.

## Identify Historic Properties

- If the undertaking might affect Historic Properties:
- Consult with SHPO/THPO to scope effort
- Identify Historic Properties in the area of potential effect through a “reasonable & good faith effort”
- Agency evaluates historic significance of the property in consultation with the SHPO/THPO
- If “no historic properties affected” – conclude Section 106 process
- If “historic properties are affected” – continue Section 106 process

## Historic Property Significance

- National Register-eligible historic property significance statements must be given in National Park Service terms
- A property must have a historic context
- If a property is eligible for listing the NHPA requires that it must be treated as if it were already listed
- Other types of cultural resources will have their own requirements

**Notes:**
The significance statements for National Register-eligible historic property must be given in terms of the criteria published by the National Park Service in National Register Bulletin 15 “How to Apply the National Register Criteria for Evaluation.”  In order to be eligible, a property must have a historic context associated with at least one of the four National Park Service criteria. Historic property does not have to be listed on the National Register in order to be protected by the NHPA. 

If a property is eligible for listing on the National Register, the NHPA requires that it must be treated as if it were already listed. 

Property less than 50 years old can be considered historic property if it is exceptionally important. 

## Determination of Effect

- Determination of the effect the project would have on Historic Property made by the responsible federal agency or Agency Official
- Development of mitigation options and a memorandum of agreement
- SHPO or THPO comment
- Determination of NEPA significance

**Notes:**
The responsible federal agency must make a determination of the effect the project would have on Historic Property. Without that, it is impossible to make a meaningful determination of the significance of impacts as defined in 40 CFR 1508.27 and develop practicable mitigation options to satisfy both NEPA and NHPA. Providing a well-developed determination of effect also makes for better coordination with the appropriate SHPO or THPO when it is time for them to comment on the NEPA and NHPA documents.

## Assess Adverse Effects

- If Historic Properties are affected:
- Agency Official assesses adverse effects by applying the criteria of adverse effect in consultation with the SHPO/THPO, consulting parties, & the public
- If “No Historic Properties adversely affected” – conclude Section 106 process
- If “Historic Properties are adversely affected” – continue Section 106 process

## Resolve Adverse Effects

- If Historic Properties are adversely affected:
- Attempt to resolve adverse effects through continued consultation between the Agency, the SHPO/THPO and the consulting parties
- Notify the Advisory Council for Historic Preservation (ACHP) and possibly invite the ACHP to participate
- If agreement is reached, prepare a Memorandum of Agreement (MOA) between the Agency, the SHPO/THPO, and the consulting parties and notify the ACHP

## Council Comment

- If parties fail to agree:
- The ACHP renders advisory comments to the head of the Agency
- The Agency must consider these advisory comments when the final Agency decision on the undertaking is made

## NEPA Analysis of Historic Property Impacts

- Minimum Requirement:
- Clearly defined Area of Potential Effect (APE)
- Information on the Historic Properties in the APE developed through reasonable and good faith effort
- Significance of Historic Properties in the APE in National Register criteria terms and including a discussion of each property’s integrity
- The responsible federal agency’s determination of effect on the Historic Property and any required mitigation
- Comments from the State or Tribal Historic Preservation Officer (SHPO/THPO)

## A Clearly Defined APE

- Area of Potential Effect (APE) varies according to the project and the nature of the resources found in the project area.
- The Historic Property may range from a rural historic landscape to a traditional cultural property (TCP).
- A TCP may be an Environmental Justice issue.

**Notes:**
The Area of Potential Effect (APE) would appear to be your project footprint but this is not always the case. In some projects, especially rural highway realignments and new freeways through previously developed urban areas, the APE can be larger than your project footprint. You provide a clear description of your project footprint to initiate the Section 106 process. You might have a  project APE that ends up being different than that footprint due to the nature of the resources found in the project area (i.e., visual, auditory, or olfactory impacts can extend beyond the project footprint).
The Historic Property found within the APE is usually thought to be archaeological or architectural in nature. It is important to remember; however, that the Historic Property found in an APE may also range from a rural historic landscape to a traditional cultural property (TCP).
Presence of a TCP may trigger an Environmental Justice issue if it is a traditional religious property or traditional resource procurement area. Its loss, or even disrupted access to it, may disproportionately affect a minority or low-income population or community.

## Historic Property in the APE

- Historic Property under the NHPA is anything included in, or eligible for, inclusion on the National Register of Historic Places.
- Other types of cultural resources exist and may require consideration:
- National Historic Landmarks
- Local Historic Landmarks
- Native American and Pioneer Cemeteries
- Local historic preservation ordnances or covenants
- Descansos or other contemporary expressions of traditional cultural practice

## Adverse vs. Significant

- “A finding of adverse effect on a historic property does not necessarily require an Environmental Impact Statement under NEPA”
- 36 CFR 800.8(a)(1)

## Human Remains 

- If human remains are encountered during construction activity, STOP WORK!
- Call someone immediately!
- Recent remains should be reported to law enforcement & coroner
- Non-recent remains should be reported to the Office of the State Archaeologist or the SHPO’s office
- Intentional disinterment without permission could lead to prosecution.
- Every effort should be made to temporarily discontinue construction activities.

**Notes:**
If human remains are encountered during construction activity, the construction workers, foreman, and supervisor should be aware that to proceed would be intentional disinterment without permission and may be a breach of state law that could lead to prosecution. Every effort should be made to temporarily discontinue construction activities. 

If the human remains are of recent origin, appropriate state, county, or local law enforcement officials and the County Coroner should be contacted. If the remains are not of recent origin, the Office of the State Archaeologist or the State Historic Preservation Officer should be contacted.

## Human Remains

**Protection of Human Remains in Iowa**
- Chapter 263B of the Iowa Code protects ancient human remains (older than 150 years).
- Marked historic burials less than 150 years old are covered under Sections 566.31 and 566.32 of the Iowa Code and require a permit from the Office of Vital Statistics for disinterment.
- Chapter 716.5 of the Iowa Code states intentional disturbance of a burial is considered criminal mischief in the third degree, an aggravated misdemeanor.