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CULTURAL RESOURCES PRESERVATION. What is a historic or cultural resource? A place, structure or object that possesses character and integrity. Is significant in terms of evoking the development of the National character.

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  2. What is a historic or cultural resource? A place, structure or object that possesses character and integrity...

  3. Is significant in terms of evoking the development of the National character...

  4. Creates a resonance or recognition within the viewer as to what is symbolic, or that which it represents

  5. Chapter Overview • National Historic Preservation Act (NHPA) • ACHP Regulations Governing Section 106 Process; • 36 C.F.R. Part 800 • Archeological and Historic Preservation Act (AHPA) • Archeological Resources Protection Act (ARPA) • Native American Graves Protection and Repatriation Act (NAGPRA) • American Indian Religious Freedom Act (AIRFA)

  6. National Historic Preservation Act (NHPA) • Cornerstone of Federal historic and cultural preservation policy • Sets forth Federal agency responsibilities to provide leadership in historic preservation • Established the National Register of Historic Places (NRHP), or “National Register,” and National Historic Landmarks (NHL) • Created the Advisory Council on Historic Preservation (ACHP) • Governors to appoint State Historic Preservation Officers (SHPOs); Federally Recognized Indian Tribes have Tribal Historic Preservation Officer (THPO)

  7. NHPA - Congressional Purpose • Concern that historic resources were being lost through federal actions • “The preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans” (NHPA, 16 U.S.C. 470) • ”Stewardship is the faithful management of resources as assets which must be turned over to the next generation” (Legacy Resource Management Program LRMP, FY 1991-92 Appropriation Act)

  8. National Maritime HeritageTortugas Harbor, Fort Jefferson, Florida

  9. NHPA Section 106- Consultation process • A detailed consultative process between Agency and other parties with an interest in the effects of an undertaking on historic properties • Reflects planning and procedural nature of statute; is not a substantive law. • Imposes an affirmative duty on Federal agency to: • Take into account the effect of an undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion on the National Register • Review Federal actions for effects on historic property

  10. What does “Consultation” mean? • The process of seeking, discussing and considering the the views of other participants, and, where feasible, seeking agreement with them regarding matters that arise under the Section 106 process • Led by the “Agency Official” who has approval authority for the undertaking and can commit the Federal Agency to take appropriate action for a specific undertaking as a result of Section 106 compliance (36 C.F.R. 800.1)

  11. ACHP and the Consulting Parties for Section 106 Consultation Process • Advisory Council on Historic Preservation (ACHP) • Consulting parties: State Historic Preservation Officer (SHPO); Tribal Historic Preservation Officer (THPO), or a representative where no THPO • Indian Tribes and Native Hawaiian organizations where they attach religious and cultural significance to historic properties that may be affected by the undertaking • Representatives of local governments and applicants for federal assistance, permits, licenses and other approvals • (36 C.F.R. 800.2)

  12. Additional Consulting Parties, and the Public • Additional individuals and organizations may join as consulting parties due to legal or economic relation to the historic property or undertaking, or their concern with the undertaking’s effect on historic properties (36 C.F.R. 800.2 ( c) (6)) • Public involvement is where the Agency seeks and considers the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects (36 C.F.R. 800.2 (d) (1))

  13. What is public involvement? • The views of the public are essential to informed Federal decision-making under Section 106 (36 C.F.R 800.2 (d)) • Unless confidentiality at issue, provide information regarding undertaking and effects • Seek public comment and input • The Agency may use NEPA procedures if they provide adequate opportunity for public involvement • In consultation with the SHPO/THPO, plan for notification and appropriate points of contact (36 C.F.R 800.3 (e))

  14. National Register of Historic Places (NRHP) • Maintained by the National Park Service (NPS) • Property must meet established criteria for listing: • Integrity, retains the basic characteristics that give it significance, and has: • Association with historically significant events or people, • Distinctive characteristics, or • May contain information important to the study of history or prehistory

  15. “Eligible for inclusion on the National Register” • What is eligible turns upon inherent historical and cultural significance of property • Eligibility for inclusion is determined by the Agency in consultation with the SHPO/THPO • Where disagreement, the Keeper of the National Register will decide (National Park Service) • Includes formally recognized properties and those that meet the criteria • “On the National Register List, or eligible for the List”

  16. New Frontiers in Historic Resources Cold War Missile Silos Minute man Missile National Historic Site, near the Badlands SD Delta-01 and Delta-09 were selected for preservation because they were the most typical and least altered from the original 1961 Minuteman missile configuration

  17. Historic property definition • Historic Property • Any prehistoric or historic district, site, building, structure, or object included, or eligible for inclusion on the National Register. Term includes artifacts, records and remains that are related to or located in the property • Includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that meet National Register criteria (36 C.F.R. 800.16 (l)

  18. Undertaking definition • Undertaking • a project, activity or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency • Includes new and continuing projects, programs or elements thereof, not previously considered(36 C.F.R. 800.16(y))

  19. Area of Potential Effect • Area Of Potential Effect (APE) • “The geographic area or area within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, • if any such properties exist” • “The APE is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” (36 C.F.R. 800.16 (d)

  20. What is “an effect”? • Effect: Means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register (36 C.F.R. 800.16 (i)) • Includes: all elements of the undertaking • all locations where ground may be disturbed • all locations where the undertaking may result in visible changes • all changes direct, indirect and cumulative to the property

  21. Latrobe Gate, Washington Navy Yard

  22. First, establish whether the action is a Federal undertaking • The Agency makes the undertaking determination, however, the Council may render advice on the existence of the undertaking • Is the action an undertaking as defined in 800.16 (y): an action under Federal agency direct or indirect jurisdiction or control? • If so, is it the type of activity that has the potential to cause effects on historic properties? • (36 C.F.R. 800.3)

  23. Agency’s undertaking determination can result in two outcomes • 1. No, there is no undertaking under 800.16 (y) • 2. Yes, there is an undertaking, but there is no potential for it to have an effect on a historic property • If either of the above determinations, then the Agency has completed its Section 106 obligations • Keep a record of such findings of the “No undertaking/No potential to cause effects” determination

  24. Undertaking determination outcomes (continued) • Yes, there is an undertaking that does have the potential to cause effects on historic properties, then: • Agency proceeds to identify properties that might be affected • Agency identifies consulting parties: SHPO, THPO, Indian Tribes, Native Hawaiian organizations, local governments, and others at Agency discretion (800.3 ( c) and (f)) • Agency plans to involve the public (800.3 (e ))

  25. Undertaking might effect historic properties, proceed with identifying historic properties • Determine scope of identification efforts by consultation with SHPO/THPO: • determining and documenting area of potential effects • reviewing existing information about historic properties • seeking information from parties likely to have knowledge of or concerns about the area • gathering information from Indian tribes and native Hawaiian organizations about properties to which they attach religious and cultural significance (800.4 (a))

  26. Undertaking might effect historic properties, proceed with identifying historic properties • Identify historic properties through consultation (800.4 (b) (1-2)) : • Standard is “reasonable and good faith effort” via research, consultation, oral history, sample field investigation and field surveys • Regs allow for phased identification • Regs allow for deferred identification where agreed to by SHPO and THPO or other circumstances warrant final determination

  27. Iolani Palace, Oahu, HI

  28. Agency to determine National Register eligibility of properties not previously evaluated for historic significance by: • Applying National Register Criteria to properties identified in the APE using special expertise • Determinations of eligibility are made in consultation with the SHPO/THPO • Where SHPO/THPO objection to determination of eligibility, pass to Council to consider referring to Keeper. • Where Native American objection to determination of eligibility, also may request Council to ask Agency to obtain determination of eligibility

  29. No historic properties affected finding where: • No historic properties are found, or • No effects on historic properties are found, then • Agency prepares appropriate documentation • Agency provides documentation to SHPO/THPO and notifies consulting parties: 30 days to object • Place documentation in public file; provide to public where requested • Proceed with undertaking, unless SHPO/THPO objects within the 30 days; Consider Section 106 completed • (800.4(d)(1))

  30. Historic properties are affected • The Federal agency must proceed to the assessment of adverse effects when it finds that: • historic properties may be affected, or, • SHPO/THPO objects to a “no historic properties affected” finding • Agency must notify all consulting parties and invite their views • (800.4 (d) (2))

  31. Assess adverse effects • Adverse Effect is found when an undertaking may alter, directly or indirectly, the characteristics of the property that qualify it for inclusion or eligibility on National Register in a manner that: • would diminish the integrity of the property’s location, design, setting, workmanship, feeling or association. (36 CFR Sec. 800.5) • Include the reasonably foreseeable effects occurring later in time, be farther removed in distance, or be cumulative. (36 C.F.R. Sec. 800.(5)(a)(1)

  32. An adverse effect can be: • Physical damage or destruction to all or part • Neglect of the property which causes its deterioration (except where such contributes to Native American or Hawaiian organization cultural and religious significance) • Removal of the property from its historic location • Change in the character, use or physical features within the property’s setting • Introduction of visual, atmospheric or audible elements • Transfer, sale or lease of the property without adequate and legally enforceable restrictions to ensure long-term preservation (36 C.F.R. 800.5 (a)(2))

  33. No historic properties are adversely effected • Agency may, in consultation with SHPO/THPO, may arrive at no adverse effect determinationif criteria not met or by modifying a project or imposing conditions 800.5(b) • Submit finding to SHPO/THPO for 30 day review • Council will no longer routinely review, but will should it deem appropriate or is requested to • Council will review if consulting parties disagree with finding and will offer advisory opinion to Agency (15 day review)

  34. No historic properties are adversely effected determination • Agency must carry forward undertaking in accordance with the findings shared with all consulting parties • Agency to retain records of findings of no adverse effect and make them available to public and share with public where requested • Failure to carry out specified undertaking and consultation agreements means lack of Section 106 compliance • (36 CFR 800.5(d)(1))

  35. Historic properties are adversely affected determination (800.5 (d) (2)) • Continue full consultation among all consulting parties • Agency must provide an opportunity for public to express views by meaningful notice and comment • Agency must notify Council and invite participation • Council may participate where circumstances in 800.6 (a) (1) (i) (A-C) exist: • Agency desires participation • Undertaking has an adverse effect on a National Historic Landmark • A Programmatic Agreement will be prepared

  36. Resolve finding of adverse effects with MOA • Resolve adverse effects by developing a Memorandum of Agreement (MOA) with all consulting parties, and Council where they are participating (800.6 (b)) • Signing MOA signifies formal conclusion of Section 106 process • MOA evidences Agency’s compliance with NHPA, and is therefore obligated to follow it’s terms • Failure to reach agreement results in Council rendering Advisory Comment to Head of Agency, specific procedures then follow (800.7 (a) (1))

  37. NHPA Section 106: Foreclosure • Beware of not completing the Section 106 process: • Foreclosure-If Agency takes action on undertaking prior to completing the Section 106 process, the Council may find that their opportunity to comment on the undertaking has been foreclosed • Foreclosure means that in the Council’s view, the Agency has violated section 106 by failing to afford the Council an opportunity to comment • Foreclosure finding leaves the Agency vulnerable to litigation (36 C.F.R. 800.9 (b))

  38. Section 106: Consultation Process Alternatives • Alternative Procedures Sec. 800.14 • Agency, Advisory Council and SHPO/THPO and as appropriate others, can negotiate alternative procedures instead of strict Section 106 process • Programmatic Agreement (PA) provides Section 106 coverage for an entire series of Properties or Undertakings • Navy:Nationwide World War II Buildings PA • Coast Guard: Nationwide protection of cultural resources during emergency response under National Oil and Hazardous Substances Pollution Contingency Plan PA

  39. NHPA Section 110: Federal Agency Responsibilities • The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency by: • appointing Federal Preservation Officer (FPO) • locating, conducting inventories and nominating historic properties • making appropriate records of the historic values of the property prior to substantial alteration or demolition • using available historic properties before acquiring new ones (adaptive reuse)

  40. NHPA Internal Agency Policy and Guidance • DoD: DoDINST 4715.16 (September 18, 2008), Cultural Resources Management • Navy: OPNAVINST 5090.1C, • Chapter 27 Cultural Resources Management; Chapter 5 Procedures for implementing the National Environmental Policy Act • SECNAVINST 4000.35A DoN Cultural Res. Program • SECNAVINT 11010.14A, DoN policy for Consultation with Federally Recognized Indian Tribes • Marines: MCO P5090.2B Chapter 8 Historic and Archeological Resources Protection • Coast Guard: COMDTINST M16475.1D, (NEPA instruction but includes NHPA and Section 4(f) of the DOT Act) • USAF: AFI 32-7065, Cultural Resources Management • Army: AR 200-4, Cultural Resources Management

  41. Successful Mission Management: Consult Early and Cooperatively

  42. Archeological and Historic Preservation Act (AHPA) • “Whenever any Federal agency finds or is notified … that its activities in connection with any Federal construction project-federally funded or licensed may cause irreparable loss or destruction of significant scientific, pre-historical, historical, or archeological data, such agency shall notify the Department of the Interior (DOI) in writing, and shall provide (DOI) with appropriate information concerning the project” (AHPA 16 U.S.C. 469)

  43. AHPA Federal Agency Requirements • Notify DOI when construction projects may damage archeological sites • Conduct or assist in the recovery of data from such sites • Wait for preservation action before resuming project • Authorizes up to 1% of project funding for preservation activities

  44. Archeological Resources Protection Act (ARPA) • Established archeological resources as part of the Nation’s heritage. 16 U.S.C. 470 aa-11 • Protected archeological resources include any material remains of past human life or activities, at least 100 years old, of archeological interest • includes human skeletal remains, surface or subsurface structures, shipwrecks, pottery, bottles, tools, funerary objects and reliquary. • Prohibits certain acts

  45. ARPA features • Prohibited acts include: • the excavation, removal, damaging, alteration, or defacement of archeological resources on federal property without a permit • trafficking in artifacts illegally excavated or removed • Applies to Federally owned and managed land, public lands and all Indian tribal lands • Contains criminal and civil penalties

  46. ARPA Federal Agency Responsibilities • Creates Federal Land Manager responsibilities: • develop plans to document and survey land for archeological resources • approve and provide permits for archeological work on land to qualified professionals • identify all Indian tribes having historical or aboriginal ties to land and sites of religious or cultural importance

  47. ARPA prohibits digging without proper permits and trafficking in artifacts

  48. LaSalle Shipwreck Project, Matagorda Bay, Texas

  49. Native American Graves Protection and Repatriation Act (NAGPRA) • Federal Agency Responsibilities: • Establishes procedures for the disposition (return and repatriation) of human remains and cultural objects held in Federal collections, or found on DOD and tribal lands • Consult with Federally recognized Indian tribes upon discovery of graves, and, cultural and funerary objects already possessed by or under the control of the Agency

  50. NAGPRA: Protections extend to graves and cultural items of early inhabitants of our lands Norton Burial Mount, MI

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