ENVIRONMENTAL IMPACT STATEMENTS - CHAPTER 12

12 The Man-Made Environment: Historic and Cultural Resources Special attention is given in environmental impact statements to the presence or absence on-site or nearby of historic and cultural resources, any possible impacts upon them and mitigating measures. The term “historic and cultural resources” cov-ers a variety of features, the most significant one of which is archaeology. Others include historic sites (recent history, i.e., up to 200 years old, as distinguished from much older historical sites covered by the term archaeology), architecturally impor-tant buildings, locations and facilities that have a cultural significance to the local communities (including those of ethnic, Indian or racial significance), and possibly unique geological locations. The term historic is broad enough to include any sites where history may have been made. Thus, for example, the author of this book over-saw a study in the 1970s that attempted to discover the original site of a Lincoln–Douglas debate. It turned out to be a present-day parking lot. 12.1 LEGAL BACKGROUND This is a somewhat confusing area, since there are federal, state and local laws that are applicable to historic and cultural resources. Presented below is a brief review of federal requirements followed by a generalized discussion of state and local situations. The basic act from which NEPArequirements for historic and cultural resources are derived is the National Historic Preservation Act (NHPA) of 1966 (PL89-665), as amended. There are a number of key requirements in this Act and its implementing regulations, the three major ones follow: 1. National Register of Historic Places. 2. Section 106 process. 3. Advisory Council on Historic Preservation. These three requirements are interwoven and are discussed together below. The National Register of Historic Places, which predates the Act, is expanded by the Act to include districts, sites, buildings, structures, and objects significant in American history. If an existing adequate survey of archaeological/historic resources at a proposed project site is not available, a new survey may be necessary to identify resources on the site which may potentially be eligible for inclusion in the National Register. Depending on the probability of a project’s potential environmental impact, these surveys may include either a reconnaissance (Step I) or intensive (Step II) survey. The surveys are conducted at the early/preliminary design stage of a project. If properties appear eligible, a request for determination of eligibility is forwarded from the lead agency to the State Historic Preservation Officer (SHPO) (36 CFR 63). If both parties agree on the eligibility, a letter stating the agreement, along with a description of the property and the SHPO’s statement of eligibility is forwarded by the agency to the Keeper of the National Register. The agency and the SHPO are then notified of the determination of eligibility within ten working days. If the agency and the SHPO disagree on the eligibility, then the Keeper of the National Register is noti-fied and makes a determination within 45 days. As stated in 36 CFR 800.9, adverse effects on National Register or eligible prop-erties may occur under conditions which include but are not limited to: 1. Destruction or alteration of all or part of a property. 2. Isolation or alteration of the property’s surrounding environment. 3. Introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting. 4. Neglect of a property resulting in its deterioration or destruction. 5. Transfer or sale of a property without adequate conditions or restrictions regarding preservation, maintenance, or use. If the property or properties are eligible for inclusion in the Register, then a determination of the effect of a project is made following the Advisory Council Criteria of Effect [36 CFR 800.9(a)]. The five possible adverse effects listed above are considered. If the proponent determines that no effect is anticipated, the project can proceed. The agency is notified and, in turn, notifies the Advisory Council on Historic Preservation which has 15 days to object. If an effect is found, the applicant, in consultation with the State Historic Preservation Officer (SHPO), must determine whether the effect is adverse according to the Advisory Council Criteria. The Advisory Council has 30 days in which to review the documentation and concur with or reject the finding. If the Advisory Council finds an adverse effect, mitigation may be suggested. If the agency and the applicant agree, conditions to mitigate impacts are included as part of the approval conditions. If the project is determined to possess adverse impact, the applicant prepares a preliminary case report to develop the mitigating measures. This is forwarded to the Advisory Council. At this point, the project may proceed along either an expedited process or a consultation process. In the case of a noncontroversial project contain-ing impacts that are customarily mitigated in a standard manner, a memorandum of agreement (MOA) signed by the applicant, the agency, and the SHPO may be deliv-ered to the Advisory Council. This memorandum of agreement sets forth measures to minimize potential adverse effects and establishes an agency review process for it. If the project cannot be expedited, the applicant, the SHPO, the agency and the execu-tive director of the Advisory Council must meet to produce an MOAwith mitigating measures. If no agreement can be reached, an EIS may be required. The EIS must contain sufficient information to be submitted as a preliminary case report. The Section 106 process must be completed prior to the issuance of the final EIS. 36 CFR Part 1204 sets forth the National Register Criteria. The preceding dis-cussion has included much of the activity required under Section 106 of the National Historic Preservation Act (NHPA). Section 106 of the National Historic Preservation Act of 1966, as amended, directs federal agencies to assess the effect of their projects on any district, site, structure, or object included in or eligible for the National Register of Historic Places. Federal agencies must obtain the review and comment of the Advisory Council on Historic Preservation before approving projects that affect such properties. As stated in 36 CFR 800.9, a project or undertaking shall be consid-ered to have an effect: “. . . whenever any condition of the undertaking causes or may cause any change, ben-eficial or adverse, in the quality of the historical, architectural, archaeological, or cul-tural characteristics that qualify that property to meet the criteria of the National Register. An effect occurs when an undertaking changes the integrity of location, design, setting, materials, workmanship, feeling, or association of the property that contributes to its significance in accordance with the National Register criteria. An effect may be direct or indirect. Direct effects are caused by the undertaking and occur at the same time and place. Indirect effects include those caused by the undertaking that are later in time or farther removed in distance, but are still reasonably foreseeable. Such effects may include changes in the pattern of land use, population density, or growth rate that may affect properties of historical, architectural, archaeological, or cultural significance.” The procedures for meeting the Section 106 requirements are defined in the Advisory Council on Historic Preservation Regulations, “Protection of Historic Properties” 36 CFR Part 800. Along with the agency, the State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation, other partici-pants in this process may include interested persons such as local governments, Indian tribes, and the public. The State Historic Preservation Officer (SHPO) is responsible for providing an inventory of cultural resources and for implementing programs to protect listed or eligible properties. Under the requirements of the NHPA, no federal agency may issue a permit until the Section 106 process has been completed. Generally, the Section 106 review should run concurrently with the NEPA review process and be initiated early in the facilities planning process. Most of the Section 106 process has already been described earlier in the sections dealing with the National Register and with the deter-mination of adverse effects. The Advisory Council on Historic Preservation has a key role in the preservation of historic and cultural resources. Its activities have been spelled out previously. It has been the experience of the author that the Council takes its role seriously and has made a substantial contribution to historic preservation in the United States. President Jimmy Carter, in his Memorandum on Environmental Quality and Water Resources Management dated July 12, 1978, directed the Advisory Council to promulgate regulations for implementing the National Historic Preservation Act. He further directed federal agencies with consultative responsibilities under the Act to publish separate procedures for implementing the Advisory Council’s regulations. Section 800.11 of the Advisory Council regulations 36 CFR 800, developed in response to the Presidential Memorandum, provides that certain responsibilities of individual federal agencies may be met by counterpart regulations jointly drafted by that agency and the executive director of the Advisory Council and approved by the chairman of the Advisory Council. 36 CFR 800 further provides that any federal agency finding that any proposed activities may have adverse effects on a property or on a property determined to be eligible for the National Register must allow the Advisory Council opportunity to comment on the undertaking. Advisory Council comments and recommendations are not binding. On October 1, 1986, the Council published revisions to these regulations implementing Section 106 of the National Historic Preservation Act. This final rule-making established the Council’s revised regulations governing the process of review and comment upon federally supported undertakings that affect historic properties. Executive Order 11593 (Protection and Enhancement of Cultural Environments) calls upon federal agencies to comply with NHPAand with the Advisory Council rec-ommendations for implementing them. Several agencies have developed such guide-lines. For example, the Corps of Engineers issued regulations (33 CFR Part 235, 1981) for implementing them. These regulations establish the procedures to be followed by the U.S. Army Corps of Engineers in its regulatory program in order to comply with the National Historic Preservation Act, implementing regulations, and Executive Orders for the protection of historic and cultural properties. The regulations were jointly drafted with the Advisory Council on Historic Preservation as counterpart reg-ulations pursuant to 36 CFR 800.11. The regulations make it the district engineers’ responsibility to comply with them on all permit requests in their areas. A number of other federal laws and regulations that affect cultural and historic resources are shown below. Most of them are intended to supplement or enforce the ones previously cited. Some are as follows: · Executive Order 11593, Protection and Enhancement of the Cultural Environment, 16 U.S.C. 470 (Sept. 1, 1971)—indirectly referred to earlier in this section requires federal agencies to survey and nominate sites on their properties to the National Register; also requires checks on any actions funded, licensed, or executed by the federal government to deter-mine eligibility of any of the properties by the Federal Register. · Archaeological and Historic Preservation Act of 1974, PL 93-291, 16 U.S.C. 469 et seq.—Act emphasizes the recovery and preservation of his-toric and archaeological data before being lost as a result of federal activi-ties, licenses, or permits. · 36 CFR Part 1204—National Register Criteria—describes criteria for inclusion in the National Register. · Antiquity Act of 1906, PL 59-209, 34 Stat. 225; 16 U.S.C. 431–433—ear-liest Act of its type; protects historic and prehistoric ruins or monuments on federal lands. · The Reservoir Salvage Act of 1969, PL 86-523, 74 STA 7.220; 16 U.S.C. 469–469c—provides for archaeological surveys of land that would be flooded by construction of a dam. In addition, appropriate state and local regulations concerning historic and cul-tural resources must be satisfied where applicable. The extent and direction of these regulations will vary between states and localities. States generally cover archaeo-logical finds, while local ordinances relate to historic and cultural sites. Each state has a State Historic Preservation Officer (SHPO) who should be consulted for existing information on any project site, as well as state requirements for surveys. 12.2 EIS CONTENTS The state of Maryland Department of Natural Resources (1974) lists the following requirements for the state of Maryland equivalent of an EIS: “Historic Considerations 1. Inventory historical features within or adjacent to the site including: a. cemeteries b. buildings c. parks d. bridges, canals, etc e. battlefields f. past land uses Archaeological Considerations 1. Inventory archaeological features within or adjacent to the site including: a. village sites b. trails c. artifact sites d. burial grounds e. battlefields f. other considerations” The Maryland Historical Trust (1981) has divided archaeological work into the five following categories: 1. Background research or prefield work preparation. 2. Preliminary archaeological reconnaissance. 3. Intensive archaeological survey. 4. Preliminary site examination. 5. Full scale excavation. An EIS usually includes the first item. In addition, some of the other items may be included, depending upon the specific situation. A brief discussion of activities included in first two items follows (MD Historical Trust, 1981) 12.2.1 BACKGROUND RESEARCH For both historic and prehistoric archaeology, inventory known sites to develop pre-dictions of the locations of historic and prehistoric archaeological sites through a ... - tailieumienphi.vn