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5 CHAPTER ONE INTRODUCTION BACKGROUND Constructive public input in the creation and use of this contextual information (tribal and minority communi- In 1998, the U.S. Congress mandated, though passage of the ties in particular need to be partners in this effort); Transportation Equity Act for the 21st Century (TEA-21), Clear principles and procedures for the role of Native the streamlining of the environmental review process for American tribes in the Section 106 process; and transportation projects. This was followed in 2002 by a Direct and tangible public benefit from historic preser- White House Executive Order (E.O. 13274, September 18, vation actions. 2002) that emphasized "the importance of expedited trans- portation project delivery while being good stewards of the Several state departments of transportation (DOTs), state environment" (1). Environmental streamlining calls for FHWA division offices, state historic preservation offices improved environmental and regulatory review of federally (SHPOs), and tribes have begun to address these needs in the linked projects. It involves the reduction and elimination of context of archaeological investigations (4). To document delays and unnecessary duplication in environmental proce- how and to what extent agencies and tribes have dealt with dures. Streamlining also calls for earlier and more efficient these issues and needs, NCHRP funded a synthesis study that coordination among agencies involved in the environmental would pull together, in a single document, information on decision-making process to reduce conflicts and delays. effective streamlining and stewardship practices involving Environmental "stewardship" directs transportation agencies archaeological investigations. to improve project delivery without compromising environ- mental protection. Stewardship improves the environmental This synthesis was also designed to explore how agencies quality of transportation decision making and also involves and tribes address the often problematic nature of archaeo- taking advantage of opportunities to enhance environmental logical work performed as part of FHWA's compliance with protection (2). Section 106 of the NHPA. Section 106 of the act requires that federal agencies take into account the effects of their projects One of the many environmental reviews performed as part on properties listed in or eligible for listing in the National of transportation project delivery is compliance with national Register of Historic Places (NRHP), and provide the Advi- historic preservation laws and regulations; in particular, Sec- sory Council on Historic Preservation (ACHP) an opportu- tion 106 of the National Historic Preservation Act (NHPA). nity to comment on the proposed project (Section 106 will be In a review of past historic preservation and transportation described in more detail later in this chapter). In a 2001 arti- streamlining and stewardship efforts, Klein and Naber (3) cle in CRM, a magazine of the National Park Service, Bar- identified several issues that are repeatedly raised during bara Little noted that national transportation and historic preservation forums, meetings, and conferences. These include the need for During the mid-1990s, critics both within and outside the profession [of archaeology] raised questions about how pub- lic archaeological programs were carried out in the United Better access to, analysis of, and use of cultural resource States. Critics asserted that implementation of laws, regula- data for making sound transportation decisions; tions, guidelines, and standards were inconsistent; that laws Early and more efficient coordination among all parties and regulations were applied inappropriately; that costs of involved in all stages and components of transportation conducting archaeological investigations were too high and frequently provided little return on expenditures; and that programs; decisions frequently were made to expedite administrative Early and more efficient coordination and integration of procedures rather than for appropriate treatment of signifi- overlapping and at times conflicting regulatory and cant archaeological properties (5, p. 21). compliance procedures [i.e., Section 106 and the National Environmental Policy Act (NEPA)]; In 2000, ACHP staff archaeologists compiled a list of Contextual information for evaluating resource signifi- issues raised in public comments on proposed changes to cance, determining what the "context" is in context- the agency's 36 CFR Part 800 regulations; the regulations sensitive solutions, and defining and meeting local and that implement Section 106 of NHPA (T. McCulloch, per- regional historic preservation goals, plans, purpose, and sonal communication, 2004). The issues most directly need; related to archaeology were similar to those discussed by

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6 Little (5), and also included the following observations and As a starting point in the development of this synthesis questions: report, the potential range of effective practices to be docu- mented through this study was identified. The following list How much identification is enough? According to of practices is based on the experiences of the topic panel whom? members, the consultants, and various national studies that There is too much duplicative and redundant work, and examined current historic preservation and transportation poor use of existing data. projects and programs (3,4). There is not enough discrimination as to which archae- ological resources are significant or valuable, or on Programmatic approaches to Section 106 compliance. what basis. Creative mitigation (e.g., "off-site mitigation," which Section 106 procedures inappropriately relegate archae- includes analysis of existing collections, development ological resources to second class status. of local or regional archaeological or historical synthe- There should be a clear focus on creative, desirable out- ses, preparation of nontechnical reports in lieu of or comes for protection and enhancement of archaeologi- supplemental to site data recovery reports, etc.). cal resources, and their related public benefit, rather Integration of tribal consultation into archaeological than just process. investigations. The inappropriate "public subsidy" of archaeological Integration of public outreach and education into archae- research, especially costly excavation, is too routinized. ological investigations. Remote sensing. This synthesis report focuses on effective practices Use of geoarchaeological data as a planning and NRHP that address these and related issues by improving the cost- evaluation tool. effectiveness, timeliness, management, and public benefit of Effective collection methods. archaeological investigations. These practices also stream- Effective approaches to the growing curation problem. line the overall project delivery process and enhance the Flexible data recovery research designs. stewardship of archaeological resources. Effective practices Use of sampling during site identification, evaluation, associated with the Section 106 process are generally con- and data recovery. ducted in the context of project-specific undertakings, often More effective use of information technology (IT) [e.g., under the umbrella of the development of the NEPA process. Geographic Information Systems (GIS) and predictive State DOTs and other agencies, however, are also using modeling]. approaches whereby information on and procedures for Flexibility in contracting practices (e.g., cost-plus versus archaeological resource identification, evaluation, and treat- fixed-fee contracts and use of in-house staff as opposed ment are established before project initiation. Many of these to outsourcing). effective practices are new and innovative, moving beyond standard operating procedures. "Innovative" approaches are The list also includes other practices that have an impact defined here as those that differ from or build and expand on on the efficacy of archaeological resource management, standard methods found in existing federal and state guide- including lines for archaeology. These guidelines include the more than 20-year-old ACHP Treatment of Archaeological Properties: Building good relationships and trust among state DOTs A Handbook (6), the 1983 Secretary of the Interior's and resource agencies, such as SHPOs. Standards and Guidelines for Archeology and Historic Integrating the Section 106 process with the steps in the Preservation (7), and the more recent 2000 National Regis- NEPA process. ter Bulletin: Guidelines for Evaluating and Registering Integrating the Section 106 process with the steps in the Archeological Properties (8), in addition to the many indi- project design process. vidual standards and guidelines developed by SHPOs and Funding of state DOT project review positions within some state DOTs. SHPOs. Training to improve the skills of both agency and con- These guidance documents and standards attempt to pro- sultant staffs. vide needed consistency and predictability in archaeological investigations conducted as part of compliance with Section Information on effective practices was obtained through a 106. Over the years, however, state and federal procedures literature search and a survey of state DOT archaeologists, based on these standards and guidelines have become FHWA state division office staff, SHPOs, Native American bureaucratic and inflexible and are out of sync with the tribes, and private-sector cultural resource management changes that have occurred within archaeology and historic (CRM) consultants working for DOTs. The aforementioned preservation (5,913). This is not the fault of the standards items were included in a survey questionnaire distributed to and guidelines per se, but is a result of the way in which his- the agencies, tribes, and CRM firms. The questionnaire asked toric preservation and transportation professionals have whether or not the agencies, tribes, and firms had experience interpreted and applied them. implementing one or more of the listed practices. They were

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7 also asked to describe the successes or problems encountered of historic properties by providing training, developing guid- in implementing these practices. The listed items also served ance, and assisting the public. as the framework for the literature review. The other participants in the Section 106 process include As noted previously, this synthesis report documents what are referred to as "consulting parties." These include effective practices as they relate to compliance with Section SHPOs, who serve as the state's representative in the 106. For those readers who are not familiar with the Section process, and tribal historic preservation officers (THPOs), 106 process, the following section briefly reviews the steps who serve the same function as the SHPO, but on tribal lands. of the process. The ACHP's website provides a more detailed When an undertaking is on tribal lands, the federal agency discussion on the steps in the Section 106 process (14). As consults with the THPO, and if a tribe has no THPO, the many of the effective practices reviewed in this report are agency consults with a designated tribal representative and linked to the NEPA process, a brief description of this the appropriate SHPO. For undertakings off tribal lands, the process is also provided. For a more detailed review of agency consults with all federally recognized tribes that NEPA in the context of FHWA policy, see FHWA's NEPA attach religious and cultural significance to properties that Project Development website (15). may be affected by the undertaking. The agency does this by consulting with the appropriate THPO, designated tribal rep- resentative (for tribes with no THPO), and the appropriate SHPO. Section 106 Section 1 of the National Historic Preservation Act of 1966, Additional consulting parties include, but are not limited as amended, states that "the spirit and direction of the Nation to, local governments; nonfederal applicants for federal are founded upon and reflected in our historic heritage," and funds, permits, or licenses; and individuals and organizations that this heritage should be preserved as part of our commu- with a demonstrated legal or economic interest or concern nity life and development. The act goes on to state that the about historic properties that may be affected by the under- preservation of this irreplaceable heritage is in the public taking. The agency also has an obligation to inform and interest and there must be mechanisms in place to preserve involve the public. State DOTs are generally involved in the this heritage in the face of development and growth, particu- Section 106 process as applicants for federal funds, permits, larly when they are linked to federal actions. This balancing or approvals. of what often appears to be opposing needs is the primary objective of NHPA and the regulations that implement Sec- The regulations at 36 CFR Part 800 establish the process tion 106 of the act (i.e., 36 CFR Part 800). through which federal agencies can meet their responsibili- ties under Section 106. This process consists of four steps. It shall be the policy of the Federal Government . . . to . . . use In Step 1, the agency initiates the Section 106 process by measures, including financial and technical assistance, to first determining if its action is an undertaking that falls foster conditions under which our modern society and our under the purview of Section 106, and whether or not the prehistoric and historic resources can exist in productive har- action has the potential to affect historic properties. If the mony. . . . (National Historic Preservation Act, Section 2). action is an undertaking that has the potential to affect his- toric properties, then the agency initiates consultation with The Section 106 process seeks to accommodate historic the appropriate SHPO, THPO (if appropriate), and other preservation concerns with the needs of Federal undertakings through consultation among the agency officials and other consulting parties. parties with an interest in the effects of the undertaking on historic properties. . . . [36 CFR 800.1(a)]. The second step involves the identification of historic properties within a project's area of potential effects. This is Section 106 requires federal agencies to take into account the area within which a project may directly or indirectly the effects of their actions on historic properties. These actions cause changes in the character or use of historic properties, include funding, permitting, and authorizing projects and pro- if such properties exist. Because many properties have not grams, both on and off federal lands. "Historic properties" are been identified and evaluated for National Register listing, sites, buildings, districts, structures, or objects listed in or eligi- agencies must make a reasonable and good faith effort to ble for listing in NRHP. The National Register is used as the identify such properties within the area of potential effects standard for defining the significance of historic places, includ- and then evaluate their eligibility for listing. When an ing archaeological sites. This section of the act also requires unevaluated property is found, the agency evaluates the prop- that ACHP be given an opportunity to comment on the federal erty using the four National Register criteria: agency's action in terms of its effects on historic properties. ACHP is an independent federal agency that advises the Presi- 1. Criterion A is associated with events that have made a dent and Congress on historic preservation matters, encourages significant contribution to broad patterns of history. the preservation of historic properties through review of federal 2. Criterion B is associated with the lives of persons sig- agency programs and projects, and promotes the preservation nificant in the past.

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8 3. Criterion C embodies the distinctive characteristics of be fully informed about the environmental consequences of a type, period, or method of construction; represents the their decisions to approve, finance, permit, or license a proj- work of a master; possesses high artistic values; or rep- ect. They must also solicit input from and inform the public resents a significant and distinguishable entity whose about the proposed project, the environmental consequences components lack individual distinction. of the proposed action, and the ultimate agency decision about 4. Criterion D has yielded or may likely yield informa- how the project will proceed. tion important in prehistory or history. The results of the NEPA decision-making process are dis- When the SHPO (or THPO if the property is on tribal lands) closed through an environmental document. concurs with the agency's evaluation, the property is treated, for the purposes of Section 106, as eligible for listing in NRHP. [D]ocumenting the NEPA process provides for complete dis- closure to the public; allows others an opportunity to provide input and comment on proposals, alternatives, and environ- If no historic properties are found in the area of potential mental impacts; and provides the appropriate information effects, or if properties are found but the project will not affect for the decision maker to make a reasoned choice among the properties, the agency makes a finding of "no historic alternatives (15). properties affected." This finding is made in consultation with the Section 106 consulting parties. A finding of "no historic The federal Council for Environmental Quality oversees properties affected" completes the Section 106 process. the national NEPA program and promulgated the regulations implementing the act (i.e., 40 CFR Part 1500). Each federal If there are historic properties within the area of potential agency also has its own set of regulations stipulating how the effects and the agency determines that its project may affect agency is to comply with its NEPA responsibilities, within the one or more of these properties, the federal agency evaluates context of that agency's mission. FHWA's policies and pro- the nature of these effects. This is step three in the Section cedures for implementing NEPA and Council for Environ- 106 process, and as with all steps in the process, is done in mental Quality regulations are found in 23 CFR Part 771. consultation with the consulting parties, particularly the FHWA manages the NEPA project development and decision- SHPO (or THPO if the undertaking is on tribal lands). The making process "as an `umbrella,' under which all applicable agency determines if its project will diminish those qualities environmental laws, executive orders, and regulations are con- that make the properties eligible for listing in the National sidered and addressed prior to the final project decision and Register. If the project will diminish these qualities, the document approval" (15). agency makes a finding of "adverse effect"; if not, the agency makes a finding of "no adverse effect." A finding of no The FHWA's compliance with Section 106 of the NHPA adverse effect completes the Section 106 process. is generally accomplished under the NEPA umbrella. This is done by integrating the steps in the Section 106 process with In step four, the agency works with the Section 106 par- the steps associated with the NEPA process. ties to resolve any adverse effects on historic properties. Res- olution of adverse effects may involve redesigning a project Federal actions range from small to very large, complex to avoid or minimize impacts to properties. If avoidance is projects, each resulting in different types of environmental not possible, then the agency will implement actions to mit- impacts. To account for this range of impacts, NEPA defines igate these effects. For archaeological sites, this is usually three classes of actions and documentation levels: accomplished through site excavation. These excavations are referred to as archaeological data recovery, as the important 1. An Environmental Impact Statement (EIS) is prepared data contained within the site is recovered before the site is when an action is likely to cause significant impacts to affected. Actions to resolve adverse effects are codified in a the environment. Memorandum of Agreement (MOA), which is a legally bind- 2. Categorical Exclusions (CEs) are issued for actions ing agreement among the federal agency, SHPOs and/or that do not individually or cumulatively have a signif- THPOs, ACHP, and the consulting parties invited to sign the icant effect on the environment (15). document. Once the agreement is signed by all appropriate 3. An Environmental Assessment (EA) is prepared for parties, the Section 106 process is completed. The agency's actions in which the significance of the environmental Section 106 responsibilities are fulfilled when the MOA's impact is not clearly established. Should environmen- stipulations are implemented. tal analysis and interagency review during the EA process find a project to have no significant impacts on the quality of the environment, a Finding of No Signif- NEPA icant Impact (FONSI) is issued. The National Environmental Policy Act of 1969 requires fed- CEs are generally used for actions that, based on the eral agencies to balance development and environmental pro- agency's experience, will have little or no environmental tection. To comply with the act, agency decision makers must impact. FHWA's NEPA regulations provide a list of such