Managing Archaeological Investigations (2005)

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

Little (5), and also included the following observations and questions: • How much identification is enough? According to whom? • There is too much duplicative and redundant work, and poor use of existing data. • There is not enough discrimination as to which archae- ological resources are significant or valuable, or on what basis. • Section 106 procedures inappropriately relegate archae- ological resources to second class status. • There should be a clear focus on creative, desirable out- comes for protection and enhancement of archaeologi- cal resources, and their related public benefit, rather than just process. • The inappropriate “public subsidy” of archaeological research, especially costly excavation, is too routinized. This synthesis report focuses on effective practices that address these and related issues by improving the cost- effectiveness, timeliness, management, and public benefit of archaeological investigations. These practices also stream- line the overall project delivery process and enhance the stewardship of archaeological resources. Effective practices associated with the Section 106 process are generally con- ducted in the context of project-specific undertakings, often under the umbrella of the development of the NEPA process. State DOTs and other agencies, however, are also using approaches whereby information on and procedures for archaeological resource identification, evaluation, and treat- ment are established before project initiation. Many of these effective practices are new and innovative, moving beyond standard operating procedures. “Innovative” approaches are defined here as those that differ from or build and expand on standard methods found in existing federal and state guide- lines for archaeology. These guidelines include the more than 20-year-old ACHP Treatment of Archaeological Properties: A Handbook (6), the 1983 Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation (7), and the more recent 2000 National Regis- ter Bulletin: Guidelines for Evaluating and Registering Archeological Properties (8), in addition to the many indi- vidual standards and guidelines developed by SHPOs and some state DOTs. These guidance documents and standards attempt to pro- vide needed consistency and predictability in archaeological investigations conducted as part of compliance with Section 106. Over the years, however, state and federal procedures based on these standards and guidelines have become bureaucratic and inflexible and are out of sync with the changes that have occurred within archaeology and historic preservation (5,9–13). This is not the fault of the standards and guidelines per se, but is a result of the way in which his- toric preservation and transportation professionals have interpreted and applied them. 6 As a starting point in the development of this synthesis report, the potential range of effective practices to be docu- mented through this study was identified. The following list of practices is based on the experiences of the topic panel members, the consultants, and various national studies that examined current historic preservation and transportation projects and programs (3,4). • Programmatic approaches to Section 106 compliance. • Creative mitigation (e.g., “off-site mitigation,” which includes analysis of existing collections, development of local or regional archaeological or historical synthe- ses, preparation of nontechnical reports in lieu of or supplemental to site data recovery reports, etc.). • Integration of tribal consultation into archaeological investigations. • Integration of public outreach and education into archae- ological investigations. • Remote sensing. • Use of geoarchaeological data as a planning and NRHP evaluation tool. • Effective collection methods. • Effective approaches to the growing curation problem. • Flexible data recovery research designs. • Use of sampling during site identification, evaluation, and data recovery. • More effective use of information technology (IT) [e.g., Geographic Information Systems (GIS) and predictive modeling]. • Flexibility in contracting practices (e.g., cost-plus versus fixed-fee contracts and use of in-house staff as opposed to outsourcing). The list also includes other practices that have an impact on the efficacy of archaeological resource management, including • Building good relationships and trust among state DOTs and resource agencies, such as SHPOs. • Integrating the Section 106 process with the steps in the NEPA process. • Integrating the Section 106 process with the steps in the project design process. • Funding of state DOT project review positions within SHPOs. • Training to improve the skills of both agency and con- sultant staffs. Information on effective practices was obtained through a literature search and a survey of state DOT archaeologists, FHWA state division office staff, SHPOs, Native American tribes, and private-sector cultural resource management (CRM) consultants working for DOTs. The aforementioned items were included in a survey questionnaire distributed to the agencies, tribes, and CRM firms. The questionnaire asked whether or not the agencies, tribes, and firms had experience implementing one or more of the listed practices. They were

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

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

9actions. At times, the preparation of an EA results in a find- ing that the proposed action will have a significant impact on the environment. In these cases, the federal agency will file a public Notice of Intent to prepare an EIS and will proceed with the development of the EIS. SYNTHESIS RESEARCH METHODS Information on effective practices discussed in this report was obtained through a literature search and a survey of a variety of agencies, organizations, and tribes. Sources con- sulted during the literature search included the FHWA’s historic preservation website, FHWA’s environmental streamlining websites, and the websites of individual state DOTs and SHPOs. Other sources included TRB reports and documents. The literature search was followed by a survey of state DOT archaeologists and FHWA state division office staff, tribal representatives, SHPOs, and CRM firms. The survey was conducted from April 2004 to September 2004. The questionnaires used in this survey can be found in Appendix A. Some respondents preferred to be interviewed, rather than complete and submit the questionnaire. Interviews were con- ducted by telephone, and at times involved multiple mem- bers of an agency’s staff. The survey questionnaire provided the structure for these interviews. An important part of the survey was obtaining information on the benefits of practices in terms of time, cost, and enhanced archaeological resource conservation. Every attempt was made, therefore, to obtain quantitative information on time and cost savings resulting from the use of these practices. DOT participation was solicited through the Association of Transportation Archaeologists e-mail group of all state DOT archaeological staff, maintained by Kevin Cunningham of the Delaware DOT. This was followed-up by direct e-mail requests to the heads of all DOT environmental divisions. FHWA staff was contacted directly, using a list of division offices recommended by FHWA headquarters. A total of 34 state DOTs and 5 FHWA offices responded to requests to participate in this study. Separate questionnaires were developed for SHPOs and consultants (see Appendix A). An inquiry was sent out to SHPOs through the National Conference of State Historic Preservation Officers (NCSHPO) listserve. The posting on the listserve was followed-up with direct e-mails to deputy SHPOs of each office or the individual overseeing Section 106 compliance. Seven SHPOs responded. The low SHPO response can be attributed to recent reductions in SHPO funds and staff. SHPOs do not have time to respond to the multiple surveys that are continually sent to their offices given reduction in staff and, in some cases, increased work- load within these offices (N. Schamu, National Conference of SHPOs, personal communication, 2004). The CRM consultant community was contacted through the American Cultural Resource Association’s (ACRA) “MembersOnly” listserve. Consultants who are not ACRA members but were recommended by the NCHRP Topic Panel and DOTs and FHWA offices participating in this study were also contacted. Five CRM firms responded. Twelve Native American tribes were also contacted to par- ticipate in this study. This list of tribes was created based on recommendations from state DOT and FHWA division office staff, and the SRI Foundation’s tribal consultant, Dr. Joe Watkins. Dr. Watkins is a member of the Choctaw Nation and, at the time of this report, an Associate Professor of Anthro- pology at the University of New Mexico. Six of the 12 tribes responded to the survey. The interviews of tribal representa- tives involved only one question: Can you describe for us a DOT project, in which you were directly involved, where the archaeological investigations went really well from a tribal point of view, and resulted in a new, innovative way of deal- ing with tribal issues associated with archaeological sites? Results from the interviews and survey questionnaires were compiled. Transcriptions of the interviews were sent to the respondents for review and comment. In addition, each survey respondent and individual interviewed was given an opportunity to review the report sections that were based on their responses. The work plan for this study included a preliminary syn- thesis report outline. This outline focused on the four steps of the Section 106 process. It was anticipated that the survey responses would focus on effective practices to streamline and enhance the four steps. However, this was not the case. Rather, the survey respondents focused on the following four topics, which in general are used uniformly across the country: 1. Communication (including tribal consultation and engaging the public), 2. Internal business practices and project delivery, 3. Pre-project planning, and 4. Innovative approaches to Section 106 steps. Interestingly, a similar change in focus occurred during a February 2004 historic preservation and transportation con- ference held in Santa Fe, New Mexico. The primary objec- tive of this conference was to develop effective strategies that enhance and streamline Section 106 compliance and trans- portation project delivery. The focus of the conference, identified in consultation with the conference sponsors, was originally an exploration of how to improve the integration of the four steps in the Sec- tion 106 process and the transportation project delivery process. The conference products were to include recom- mendations on how to improve this integration. As discus- sions proceeded, the conference’s focus shifted from the specifics of the Section 106 process to the following topics,

which subsequently served as the foundation for the confer- ence’s recommended action plans: • Pre-project planning—integrating cultural and natural resources early in pre-project planning and program- ming, re-energizing the development and appropriate use of historic contexts, and examining pre-project plan- ning models. • Improving the Section 106 process and project delivery— improving mitigation efforts, creating consistent ap- proaches for assessing National Register eligibility and project effects, and developing state-based streamlining agreements. • Communication—enhancing public benefits, developing guidance on tribal consultation, and emphasizing context- sensitive design in terms of historic preservation. • Funding—fully funding the Historic Preservation Fund, setting aside FHWA grant program funds for historic preservation offices (HPOs), and presenting examples and evidence on the value of pre-planning to agency leaders. • IT/information management systems—creating a model DOT information clearinghouse website, designing a model project activity tracking program, and fostering and improving tribal IT. A preliminary draft of the conference recommendations and the action plans are presented in Appendix C. ORGANIZATION OF REPORT As demonstrated by the synthesis survey responses and the 2004 Santa Fe conference, communication (both internal and external to state DOTs) is critical to the success and 10 effectiveness of archaeological investigations (15). Chapter two, therefore, examines practices that improve and main- tain good communication, including communication between agencies and Native American tribes and efforts to engage the public. Another factor that influences the effec- tiveness of archaeological investigations (and Section 106 compliance) is the nature of internal state DOT business practices, which include the structure and function of archaeological divisions within a DOT. Chapter three reviews internal business practices within state DOTs. This chapter also examines effective and innovative practices to integrating Section 106, NEPA, and project design, partic- ularly in terms of the timing and level of effort for archae- ological investigations during the project development process. Chapter four focuses on nonproject-specific efforts that streamline future project delivery and review. These pre-project planning efforts include programmatic agree- ments (PAs), IT/information management tools (such as GIS databases and computerized archaeological predictive models), and syntheses and treatment guidance on specific categories of archaeological resources. Chapter five exam- ines practices that improve the basic steps in the Section 106 process. These practices include the use of geophysical methods as a tool for archaeological resource identification and NRHP evaluation, flexible and staged data recovery strategies, and creative approaches to resolving adverse effects on archaeological sites. As part of the survey, each person was asked to describe the obstacles they encoun- tered when they tried to implement an innovative approach. These obstacles are reviewed in chapter six. The results of this synthesis study are summarized in chapter seven, focusing on areas of future research and needs identified by the state DOTs, FHWA, SHPOs, tribal representatives, and private-sector firms.