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If you are involved in a project covered by CEQA, NEPA, or both, then you will have to do some assessments. One of these is a cultural assessment, which is also required by Section 106 of the National Historic Preservation Act (NHPA). A cultural assessment is a survey of cultural resources which might be damaged by a project. This includes archaeological sites, historic buildings, Native American resources, etc.
Essentially, a cultural impact assessment is done to ensure that the project is not destroying anything of significant cultural value. Not all of these resources are readily visible to the untrained eye, including buried archaeological resources and sites of important events. These assessments are not limited to designated historic districts and similar but can affect any site, greenfield or brownfield. However, they are most likely to affect sites that are listed on the National Register of Historic Places, the California Register of Historical Resources, or both.
How Does NEPA Interact with Section 106?
To avoid expensive duplication of effort, NEPA and Section 106 reviews are coordinated so that only one survey has to be done. The NEPA environmental review should be integrated with Section 106, ensuring that the environmental review meets the requirements of both.
NEPA is looking for significant impacts to cultural resources, which are analyzed in context. Section 106 defines an adverse effect as altering any of the characteristics of a historic property that qualify the property for inclusion in the National Register. In other words, if you are working on a site of historical significance, you need to work within its characteristics.
CEQA also requires that studies be done to determine the presence of historical resources, and this can remove a property from categorical exemptions. For sites in California, it’s important to plan a review that meets the standards of all three laws. Again, this avoids expensive duplication of effort and ensures no nasty surprises later.
What is a Historic Property Survey Report or Historical Resources Compliance Report?
A cultural assessment should generate a Historic Property Survey Report (HPSR) for sites with federal involvement, or a Historical Resources Compliance Report (HRCR) for projects at the state level.
The HPSR may be negative, that is to say, it might say no historic properties are affected. When it is positive, a Finding of Effect document must be prepared, which will either find no adverse effect or adverse effect. When an adverse effect is found, this automatically triggers an environmental impact report unless mitigation can be easily performed.
As a note, most findings are made public, but the precise location of archaeological sites is restricted, to prevent vandalism and treasure hunting.
Who Prepares a Cultural Impact Assessment Report?
Cultural assessments must be prepared by people who are appropriately qualified. That is to say, you need to bring in a historian, an archaeologist, an architectural historian, etc, as needed.
For Tribal Cultural Resources under CEQA, the tribe must be consulted, and those timelines tend to happen later in the development process. This means they can significantly affect your schedule and cost. Ideally, then, you should do a preliminary consultation to establish whether your project will affect a TCR and plan mitigation or avoidance appropriately.
What Should Be in the Draft Environmental Document?
First of all, you need to establish if your project is subject to Section 106, identify the appropriate parties for consultation, and initiate Native American consultation if needed.
The document may include any or all of the following:
- Archaeological survey report
- Historic architectural survey report
- Extended phase I archaeological study if needed
- Phase 2 archaeological study if needed
- Historic resource evaluation report
- Native American consultation
- Documentation of coordination efforts
- Finding of effect
- Draft Section 4 evaluation
If there is a finding of no historic properties affected, then this means consultation is typically closed at this stage. If there are affected properties, then the assessment needs to be made as to whether there is an adverse effect.
Public consultation is required for this. In the final document, the following will also be included:
- The adverse effect finding
- A Memorandum of Agreement with all consulting parties to resolve the adverse effects
- Data recovery plans
- Documentation of coordination efforts
- Treatment plans
- Planning for subsequent discoveries
- Final evaluation for preferred alternative
As a note, you may need a permit to conduct archaeological investigations, and the best time to do them is at the right of way stage unless you can get permission to do them before purchase. You should always do a records search before purchase to identify whether, for example, a structure is on the National Register.
What Should Contractors Consider?
First of all, doing an archaeological survey and records search, if possible, before purchasing land can help you avoid a lot of expenses and delays. It is always worth checking to ensure that your proposed site does not contain a TCR and avoid that if possible. At the very least, allow enough time to do mitigation activities before construction. This might include recovering data from archaeological sites, recording historic structures, changing site plans to avoid historic resources, etc.
If you are explicitly working with a historic property, bring in the people you need to ensure that you can preserve its character and involve them from the start. This can add expense, but the results are worth it. Bear in mind that if adverse events show up during construction then you will need to stop and mitigate them. However, it’s not always feasible to avoid historic resources.
Make provision for archaeological sites discovered during construction. If you are working on a site, such as an urban site, which may have had layers of prior occupation, it can be a good idea to have an archaeologist on retainer, just in case you find anything. Having somebody you can call immediately can help reduce delays and assist in mitigation.
The takeaway is that a cultural impact assessment is needed if your property is covered by NEPA, CEQA, or both. It is also a good idea if you suspect the site of having cultural significance so that you can appropriately mitigate and protect valuable cultural, historical, and tribal resources.