PARTNER CENTRAL - ENVIRONMENTAL
Cultural resources involve both archaeological (buried cultural deposits) and historic / built environment (above ground structures) resources. Although the regulatory process addressing these resources is the same, they represent two distinct disciplines which require different approaches to preservation and/or mitigation.
Several federal laws and Oregon State Laws regulate the protection and management of cultural resources. Of these laws, the Oregon statutes and Section 106 of the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA) and Section 4(f) of the Department of Transportation Act are the primary legal mandates, and detail specific regulatory requirements which ODOT, acting on behalf of FHWA, must satisfy.
Because cultural resources can vary widely from prehistoric and historic archaeological sites, to historic structures (such as bridges, early irrigation systems, and buildings), the Section 106 process for the OTIA III Bridge Delivery Program could not be addressed programmatically. Each bridge project will need to have cultural resources professionals on staff to review and submit documentation for SHPO compliance, in order to complete the Section 106 permitting process. Every bridge project is responsible for providing sufficient documentation to complete the Section 106 process.
What is different about the OBDP Section 106 process?
Although Section 106 reviews of bridge projects could not be addressed programmatically, the identification of cultural resources—the first step in the Section 106 process—has been completed for each bridge Area of Potential Impact (API). This work identifies potential resource conflicts that can be incorporated early into the project development process.
Environmental Baseline Reports identify all potential historic built environment resources for each OTIA III Bridge Program project area. The baseline reports also provide general data for archaeological resources. However, in addition to the general archaeology data, recommendations for sub-surface investigations have been completed and are reported on separately. Archaeological data in the Environmental Baseline Reports is thus limited and incomplete.
Due to confidentiality provisions, each project will need to request copies of all available archaeological reports for their project (using the confidentiality request form), even if the baseline report indicates there are no resources located within the API. Section 106 is project based, not resource based. Even a project with no cultural resources identified will need to document the level of effort used to identify cultural resources within the project area, and submit a Finding of Effect documenting that effort for SHPO concurrence.
Keep in mind that Environmental Baseline information is not complete. Although archaeological surveys were completed for each bridge project, most survey coverage was only able to address existing right-of-way and public land. If your project requires new right-of-way, access approaches or other secondary construction on land that was not previously surveyed, your project will need to have a cultural resource professional conduct additional surveys (see SHPO guidance).
In addition to survey data being completed, original OTIA III bridges (excluding local bridges) have been reviewed for their eligibility for listing in the National Register of Historic Places. The majority of OTIA III Bridge Delivery Program bridges have been determined not eligible, as recommended in the Environmental Baseline Reports. A Programmatic Finding of Effect (Not Eligible) was submitted to SHPO by ODOT and has been approved. So although each bridge project will need to complete the Section 106 review, many bridges have been assessed for eligibility. Again, this provides a substantial step up in completing the Section 106 process.
28 bridges within the OTIA III Program have been determined eligible for listing in the National Register of Historic Places. A Memorandum of Agreement (MOA) addressing mitigation for the replacement of these bridges has been developed and is in review. Once this is in place, eligible bridges to be replaced will have mitigation conducted and, the majoritywill not need further evaluation in the Section 106 process. However: eligible bridges to be repaired will need to be evaluated on a case-by-case basis in a project’s Section 106 review. If an eligible bridge is in your contract bundle, coordinate with OBDP’s Cultural Resources Coordinator to ensure a smooth review process and verify what needs to be included in the Section 106 documentation.
Do I need to have a cultural resources professional on staff?
Yes. 36 CFR 800.2, the regulatory framework for Section 106 of the National Historic Preservation Act requires that contractors conducting cultural resources work on behalf of an agency meet Secretary of the Interior’s Standards for a cultural resources professional (36 CFR 61). Additionally, pursuant to ORS 390.235 (6)(b) and based on SHPO standards, access to archaeological reports—including those completed for the bridge program—are available only to qualified archaeological professionals (see SHPO web site on Archeological Records Management). Each new archaeological contractor requesting access to completed archaeological reports will need to provide a Curriculum Vitae to demonstrate they meet state and federal qualifications.
The Section 106 process is complicated, and only cultural resource professionals experienced in archaeology and the historic built environment can sufficiently determine if a project design will impact archaeological sites, for instance, and / or advise on the level of effort needed. Although resources may not be present on a project, only a cultural resources professional can adequately determine if the level of effort to identify potential resources has been appropriate for the project. Additionally, cultural resource professionals can help alert design teams to secondary impacts that also need to be considered in a Section 106 review (e.g., temporary easements, staging areas, disposal areas, utility relocates, etc.). Having a cultural resources professional on staff will ensure a smoother and faster project delivery, avoid delays or questions during the SHPO review, as well as establish and maintain credibility with regulators, Tribal Governments, ODOT and FHWA.
Why does the location of archaeological sites need to be kept confidential?
Looting of archaeological sites is a perennial problem. Archaeological sites are a finite resource; removing archaeological material from a site is extremely destructive and not only damages the site, but permanently destroys the information it contains. If artifacts are removed from their context, the story they can tell about a site is lost. Additionally, many prehistoric archaeological sites hold deep cultural significance for Oregon’s Tribes.
Archaeological sites are protected under Oregon State and Federal Law, and heavy fines and jail sentences can result in looting of archaeological sites. To ensure against looting and protect sensitive cultural resources, Oregon State Law and Federal Law specifically state that archaeological sites are exempt from the Freedom of Information Act. Each contractor's archeologist will need to request archaeological reports by signing a confidentiality agreement. Details on applicable laws can also be found at the Oregon State Historic Preservation Office web site.
What does the A&E contractor need to do to complete the Section 106 process?
The A&E contractor needs to have a cultural resource professional review the Environmental Baseline Reports and any other pertinent available data. Based on that data, the A&E contractor needs to identify in their scope the level of work expected to complete the Section 106 process.
Once given notice to proceed, the A & E contractor’s cultural resource staff needs to review the project for potential impacts to cultural resources:
- Review Environmental Baseline Reports
- Sign confidentiality form and submit request for all available archaeological reports for awarded bundle
- If design will extend into areas that have not been surveyed, schedule additional surveys (both archaeological and historic / built environment). Archaeological surveys should be based on State of Oregon Archaeology Reporting Standards and all isolates and sites recorded on appropriate SHPO form(s).
- If resources are located within project area, work with design team to develop measures for avoidance. Be creative. Most resources can be avoided with protective measures (e.g., no work zones in the design plans and/or on site), or with minor design modifications and exceptions. Avoidance is always in the best interest of project delivery, as well as the protection of the resource (see Adverse Effect Guidance)
- Once impacts are determined and there will be no effect to cultural resources (i.e., historic properties), write-up a Finding of Effect letter for review at ODOT and submittal to SHPO
- If impacts to resources cannot be avoided, coordinate with OBDP cultural resources coordinator as soon as impact is identified. All Determinations of Eligibility should be formatted on approved forms (see DOE for Archaeological Resources and DOE for Historic / Built Environment Resources).
- Allow enough time for review of any additional survey reports and Finding of Effect submittal at OBDP and ODOT, as well as legal 30-day review period at SHPO
- Once concurrence is received back from SHPO, Section 106 process is complete. However, A&E contractor will need to ensure that any provisions outlined for avoidance are adhered to throughout construction, otherwise consultation would need to be re-initiated
What is the best practice if I have a cultural resource located in my project area?
With significant survey coverage completed, A&E contractors have a step up in completing the Section 106 process. If a resource is within the API, design should incorporate that information to develop measures for avoidance. Preservation (i.e., avoidance) is always the primary goal, and one that is generally most satisfying for interested Tribes, regulators and cultural resource professionals, and most desirable in terms of project schedule and cost. Adverse effects to cultural resources will dramatically affect scope, schedule and budget. In many cases, adverse effects to cultural resources can be avoided by simple project design changes, work zone restrictions, or other cost-effective measures. However, preservation must always be weighed with traffic efficiency and safety, and in some cases may not be possible. If a cultural resource cannot be avoided by a bridge project, the design team must ensure that all other options have been exhausted and develop plans for mitigation.
- What types of work can impact cultural resources?
- What do I do if my project has an adverse effect? What does an adverse effect mean for a project?
Tribal and regulatory consultation
ODOT and FHWA have a government-to-government relationship with Oregon’s nine federally recognized Tribal governments. Similarly, ODOT and FHWA are responsible for all consultation with the State Historic Preservation Office (SHPO) regarding ODOT projects. An A&E consultant’s cultural resources review and any additional work can help support tribal and regulatory consultation, but A&E contractors cannot consult directly regarding OTIA III Bridge Delivery Projects on behalf of ODOT and FHWA.