Hydropower Cultural Resource Assessment (11)
Direct impacts to cultural resources could occur from construction activities, and indirect impacts might be caused by soil erosion and increased accessibility to possible site locations. Potential impacts include:
- Complete destruction of the resource if present in areas undergoing surface disturbance or excavation;
- Degradation or destruction of near-surface cultural resources on- and off-site resulting from topographic or hydrological pattern changes, or from soil movement (removal, erosion, sedimentation);
- Unauthorized removal of artifacts or vandalism to the site as a result of increases in human access to previously inaccessible area, if significant cultural resources are present; and
- Visual impacts resulting from vegetation clearing, increases in dust, and the presence of large-scale equipment, machinery, and vehicles (if the affected cultural resources have an associated landscape or other visual component that contributes to their significance, such as scared landscape or historic trail).
In order to avoid any inadvertent disturbances of cultural materials, the federal agency should consult with the following parties, as applicable:
- The State Historic Preservation Officer (SHPO)
- The Tribal Historic Preservation Officer (THPO)
- The local tribe's designated representative
- Any Indian tribe attaching religious and cultural significance to a historic property that may be affected by the undertaking
- The project proponent
- Local governments
- Advisory Council on Historic Preservation
Typically, stakeholders are successful in negotiating a memorandum of agreement dictating protocol for managing disturbance of cultural materials.
Typically this process is accomplished as part of the National Environmental Policy Act (NEPA process).Environmental Review: 9 (2)
Cultural Resource Assessment Process
11.1 - Is the Project a Federal Undertaking?
Section 106 applies when two thresholds are met: (1) there is a federal undertaking, and (2) that action has the potential to affect properties listed in or eligible for listing in the National Register of Historic Places.
Section 106 requires each federal agency to identify and assess the effects of its actions on historic resources. The responsible federal agency must consult with appropriate state and local officials, Indian tribes, applicants for federal assistance, and members of the public. The federal agency must then consider the consulted parties’ views and concerns about historic preservation issues when making final project decisions.
Effects are resolved by mutual agreement, usually among the affected state's SHPO or the THPO, the federal agency, and any other involved parties. The ACHP may participate in controversial or precedent-setting situations.
The federal agency must determine whether the proposed federal action is a "Federal undertaking," defined by 36 CFR 800.16(y) as "…a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval." If the federal project is a “Federal undertaking,” the agency must determine whether it has the potential to cause effects on historic properties. See 36 CFR 800.3(a).
The ACHP’s regulations at 36 CFR 800 et seq. govern Section 106 compliance. Generally, undertaking agencies must comply with the process delineated by 36 CFR 800.3-800.6. However, there are two circumstances under which the process may be altered. First, 36 CFR 800.8 allows agencies to coordinate the Section 106 and National Environmental Policy Act (NEPA) processes, and in some cases to use the NEPA review to comply with Section 106 as an alternative to the process set out in 36 CFR 800.3-800.6. See 11.4, below. Second, 36 CFR 800.14 allows federal agencies to develop alternate procedures and substitute them for the procedures outlined by 36 CFR 800.3-800.6. In many cases, a federal agency and the ACHP will negotiate a programmatic agreement. See 36 CFR 800.14(b). Federal agencies may also negotiate specific protocols for implementing 36 CFR 800.3-800.6 with specific SHPOs. For a list of programmatic agreements between the ACHP and federal agencies, see the Nationwide Programmatic Agreements List on the ACHP’s website.
For hydropower projects, cultural resource assessments could be required for hydropower licenses issued by the Federal Energy Regulatory Commission (FERC), Leases of Power Privilege (LOPPs) issued by the Bureau of Reclamation (BOR), or Section 404 permits issued under the Clean Water Act by the U S Army Corps of Engineers (USACE). Issuance of any one of these would be considered a federal undertaking as defined by the applicable federal regulations. Any project that falls within FERC’s jurisdiction is a federal undertaking.
11.2 - Initiate State Cultural Considerations
When a project could impact state cultural or historical artifacts, applicable state laws must be considered.
In Alaska, a project will trigger the State’s historic preservation process, directed by the Office of History and Archaeology (OHA) and the State Historic Preservation Office (SHPO), both housed in the Alaska Department of Natural Resources – Division of Parks and Outdoor Recreation, if the project occurs on private land on which there is an officially designated state monument or historic site, or if the project is undertaken, licensed, or permitted by the state, or located on state lands. For more information, see:
In California, state cultural considerations are considered during the California Environmental Quality Act (CEQA) process. In determining whether a project may have a significant impact on the environment, CEQA regulations consider historical resources as part of the environment. (Cal. Pub. Res. Code § 21001(b)). For more information, see:
In Colorado, nearly every hydropower project will trigger the State’s historic preservation process directed by the Colorado Office of Archaeology and Historic Preservation. CRS 24-80.1-102; CRS 24-80.1-104(2)(a); History Colorado - Review and Compliance Webpage. In addition, a developer should also remain aware of Colorado’s human remains discovery process. For more information, see:
In New York, state cultural considerations are considered as part of the State Environmental Quality Review (SEQR) process. The Commissioner of the New York State Office of Parks, Recreation and Historic Preservation acts as the State Historic Preservation Officer (SHPO) and reviews any project involving a state action which may affect a nominated or listed State Register property. The SHPO’s role in the review process is to ensure that effects or impacts on eligible or listed properties are considered and avoided or mitigated during the project planning process. New York - State Historic Preservation Office: National Register; 9 CRR-NY 426.1.
For more information, see:
In Vermont, cultural considerations are triggered for all hydroelectric projects that are federal and/or state undertakings. An undertaking “means any project, activity, or program, including action on approval, authorization, license, and permit applications that can result in a change in the character or use of an historic property or historic resource.” Vermont Historic Preservation Act Rules, CVR 11-050-001 §2.41. For more information, see: State Cultural Considerations:
In Washington, a project may trigger the state’s historic preservation process if human remains or other cultural or archaeological resources are discovered on the project site. For more information, see:
11.3 - Is There Potential for the Activities To Cause Effects on Historic Properties?
Federal agencies have responsibilities under a number of laws that may influence the way they carry out their National Historic Preservation Act section 106 duties. Section 800.3(b) of ACHP's regulations specifically encourages coordination of section 106 responsibilities "with any reviews required under other authorities such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archaeological Resources Protection Act, and agency-specific legislation."
However, compliance with one or more of these other statutes does not substitute for compliance with ACHP's regulations, 36 CFR Part 800, unless ACHP explicitly agrees that it does through execution of a Programmatic Agreement or approval of alternate procedures.
NATIONAL ENVIRONMENTAL POLICY ACT
Under NEPA, agencies must assess the environmental impacts of proposed federal actions, including impacts on cultural and historic resources. To an extent, NEPA addresses some of the same concerns as NHPA. For instance, both statutes require agencies to identify irreversible effects.
Agencies may coordinate studies and documentation prepared under Section 106 with those prepared for NEPA. ACHP's regulations provide guidance on how the NEPA and Section 106 processes can be coordinated (Section 800.8(a)). They also set forth the manner in which a Federal agency can use the NEPA process and documentation to comply with Section 106 (Section 800.8(c)).
ARCHAEOLOGICAL AND HISTORIC PRESERVATION ACT OF 1974
If a project will affect historic properties that have archaeological value, the AHPA may impose additional requirements on an agency. Notifying the Department of the Interior that you are doing something under AHPA does not constitute compliance with Section 106.
ARCHAEOLOGICAL RESOURCES PROTECTION ACT OF 1979 (ARPA)
If Federal or Indian lands are involved, ARPA may impose additional requirements on an agency. Archaeological Resources Protection Act:
- Prohibits unauthorized excavation on Federal and Indian lands;
- Establishes standards for permissible excavation;
- Prescribes civil and criminal penalties;
- Requires agencies to identify archaeological sites; and
- Encourages cooperation between Federal agencies and private individuals.
Acquiring an ARPA permit does not constitute compliance with Section 106.
AMERICAN INDIAN RELIGIOUS FREEDOM ACT OF 1978 (AIRFA)
AIRFA affirms the right of Native Americans to have access to their sacred places. If a place of religious importance to American Indians may be affected by an undertaking, AIRFA promotes consultation with Indian religious practitioners, which may be coordinated with Section 106 consultation. Amendments to Section 101 of NHPA in 1992 strengthened the interface between AIRFA and NHPA by clarifying that: Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register. In carrying out its responsibilities under Section 106, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph (A). 16 U.S.C. 470a (a)(6)(A) and (B).
For activities on Federal lands, NAGPRA requires consultation with "appropriate" Indian tribes (including Alaska Native villages) or Native Hawaiian organizations prior to the intentional excavation, or removal after inadvertent discovery, of several kinds of cultural items, including human remains and objects of cultural patrimony. For activities on Native American or Native Hawaiian lands, which are defined in the statute, NAGPRA requires the consent of the Indian tribe or Native Hawaiian organization prior to the removal of cultural items. The law also provides for the repatriation of such items from Federal agencies and federally assisted museums and other repositories.
NAGPRA defines Native American cultural items as:
- Human remains,
- Associated funerary objects,
- Unassociated funerary objects,
- Sacred objects, and
- Cultural patrimony.
In brief, NAGPRA requires agencies to:
- Inventory Native American cultural items,
- Repatriate Native American cultural items, and
- Consult with Native American groups about permits to excavate on Federal or tribal lands.
1992 amendments to NHPA strengthened NAGPRA by encouraging "protection of Native American cultural items...and of properties of religious or cultural importance to Indian tribes, Native Hawaiians, or other Native American groups" Section 112(b)(3) and by stipulating that a Federal "...agency's procedures for compliance with Section 106...provide for the disposition of Native American cultural items from Federal or tribal land in a manner consistent with Section 3(c) of Native American Graves Protection and Repatriation Act...." Section 110(a)(2)(E)(iii).
11.4 - Initiate Cultural Resource Survey
As stated above, Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects of their undertakings on historic properties. A historic property is “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.” See 36 CFR 800.16(l).
36 CFR 800.4 requires a federal agency considering an undertaking to identify historic properties within the area of potential effect (APE). This may include cultural resource surveys in some circumstances.
Bureau of Land Management Resource Survey
The Bureau of Land Management (BLM) may conduct cultural resource surveys under certain circumstances. Cultural resources or cultural properties are defined by the BLM as: a definite location of human activity, occupation, or use, normally greater than 50 years of age, identifiable through field inventory, historical documentation, or oral evidence. The term includes archaeological, historic, or architectural sites, structures, places, or sites or places with important public and scientific uses, and may include definite locations (sites or places) of traditional cultural or religious importance to specified social and/or cultural groups (cf. “traditional cultural property”). Cultural resources are concrete, material places and things that are located, classified, ranked, and managed through the system of identifying, protecting, and utilizing for public benefit described in laws, regulations, and the BLM Manuals ( Section 8110 - Identifying and Evaluating Cultural Resources, Section 8120 - Tribal Consultation Under Cultural Resources, and Section 8140 - Protecting Cultural Resources).
11.5 to 11.6 - Initiate Tribal Consultation
Federal agencies are charged with the responsibility to meaningfully consult with tribal organizations. See Presidential Memorandum on Tribal Consultation. FERC requires a tribal consultation to take place in order to determine if the hydroelectric project will impact Native American or Native Hawai’ian interests.
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- National Historic Preservation Act
- 36 CFR 800 - Protection of Historic Properties
- Native American Graves Protection Act
- Archaeological and Historic Preservation Act
- Archaeological Resource Protection Act
- American Indian Religious Freedom Act
- Paleontological Resources Preservation Act
- Federal Cave Resources Protection Act
- Title 25 CFR 224 Tribal Energy Resource Agreements Under The Indian Tribal Energy Development and Self Determination Act
- Presidential Memorandum on Tribal Consultation
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- US DOE Guide to Tribal Energy Development
- Department of the Interior's Tribal Consultation Policy Resources
- BLM Manual: Section 8110 - Identifying and Evaluating Cultural Resources
- BLM Manual: Section 8120 - Tribal Consultation Under Cultural Resources
- BLM Manual: Section 8140 - Protecting Cultural Resources
- BLM Information/Forms for obtaining a Cultural Resource Use Permit
- Tribal Energy and Environmental Energy Clearinghouse. ACHP Section 106, Regulations Flow Chart
- ACHP List of Programmatic Agreements
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