Month: January 2018

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Resolving the Effects of Climate Change on Historic Properties

A previous article focused on how land managers/agencies could go about assessing the effects of climate change on historic properties. This article moves to the next step, how to resolve the effects of climate change on historic properties.

The National Park Service (NPS) Climate Change Response Strategy

The NPS Climate Change Response Strategy describes goals and objectives to guide historic preservation actions under four integrated components:
science, adaptation, mitigation, and communication. These are the four pillars of climate change response defined in the NPS Climate Change Response Strategy (2010) that can be implemented by any land manager or agency.

  • Science: Conduct scientific research and vulnerability assessments necessary to support adaptation, mitigation, and communication efforts. Collaborate with scientific agencies and institutions to meet the specific needs of management as it confronts the challenges of climate change. Learn from and apply the best available climate change science.
  • Mitigation: Reduce the carbon footprint of the land manager/agency. Promote energy efficient practices, such as alternative transportation. Enhance carbon sequestration as one of many ecosystem services. Integrate mitigation into all business practices, planning, and the organization’s culture.
  • Adaptation: Develop the adaptive capacity for managing natural and cultural resources and infrastructure under a changing climate. Inventory resources at risk and conduct vulnerability assessments. Prioritize and implement actions, and monitor the results. Explore scenarios, associated risks, and possible management options. Integrate climate change impacts into facilities management.
  • Communication: Provide effective communication about climate change and impacts to the public. Train staff and managers in the science of climate change and decision tools for coping with change. Lead by example.

How are Climate Action Plans (CAP) addressing Historic Preservation?

This is a bit of a trick question, in that most CAP are not addressing historic preservation directly. The CAP reviewed for this article in California, Colorado and Hawai’i, three states that are leading the way on planning for climate change, do not explicitly address historic properties. They do effectively summarize the science that climate planning is based on and their own assumptions for how climate change will affect their municipality’s infrastructure. The CAP also put forth reasonable mitigation to help reduce the municipality’s carbon footprint. Lastly, most municipalities that have taken the time to consider and complete a CAP, have made efforts to communicate with the public and lead by example. However, typically there’s no mention of adaptive management strategies to address impacts to natural or cultural resources in any CAP reviewed.

Mitigation are activities that reduce an organization’s impact on climate change; whereas adaptation takes into account that activities are occurring and what investments do we need to do to adapt to the changes that are ensuing.

Why is Historic Preservation Important in light of Climate Change?

One of the first tenets that archaeologists learn during their professional training is that the past is the key to the present. Cultural resources are our record of the human experience. Collectively, archeological sites, cultural landscapes, ethnographic resources, museum collections, and historic buildings and structures connect one generation to the next.

There are two primary and equal considerations for cultural resources in relation to climate change:

(1) cultural resources are primary sources of data regarding human interactions with environmental change over time; and
(2) changing climates affect the preservation and maintenance of cultural resources.

Adaptation planning and implementation will require collaboration and coordinated actions among and across many jurisdictions.The NPS proposes a generalized planning framework constructed in the form of a logic model that aligns with six principles for effective decision making and identifies specific products, tools, and approaches (such as down-scaled climate models, vulnerability assessments, and scenario planning) that can be developed for on-the-ground adaptation planning. This is an adaptive framework that incorporates current knowledge with tools for exploring future uncertainty. With an increased focus on adaptive management and scenario planning, land managers/agencies will be better equipped to respond to the rapid pace of decisions demanded by climate change.

Climate Action Plans reviewed for this article:

California:

Colorado:

Hawai’i:

Ms. Garcia-Herbst would like to use her training at the Climate Reality Leadership Corps in 2017 in Denver, as well as climate science, to promote historic preservation in areas affected by sea level rise and climate change related erosion, such as coastlines, rivers and deforested areas.

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NHPA: Other Section 106 considerations

There are additional considerations land developers should keep in mind while working through the Section 106 compliance process. Those considerations include coordinating with the National Environmental Policy Act (NEPA), Special Requirements for protecting National Historic Landmarks (NHL), and when to use a Programmatic Agreements (PA).

Coordinating Section 106 with NEPA

Federal lead agencies are encouraged to coordinate Section 106 compliance with NEPA compliance, as many of the steps can meet the purposes and requirements of both regulatory statues in a timely and efficient manner. Agency officials should ensure that preparation of an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) to the environment (including historic properties), or an Environmental Impact Statement (EIS) and Record of Decision (ROD) that serves as a public record documenting the agency’s decision regarding the Undertaking and among other things a summary of any applicable monitoring and an enforcement program for mitigation to impact to the environment by the Undertaking, includes the following:

  • appropriate scoping,
  • identification of historic properties,
  • assessment of effects upon them,
  • and consultation leading to the resolution of any adverse effects.

An agency official may use the process and documentation required for the preparation of an EA/FONSI or EIS/ROD to comply with Section 106 in lieu of the steps outlined in §800.3 to 800.6, if the agency has notified the SHPO and consulting parties that it intends to do so and the standards in §800.8(c) are met.

When to use a PA instead of an MOA

MOA are typically used for discrete or short term projects, while PA are typically used for long term, complex projects or multiple Undertakings. Some examples of when to use a PA include the following:

  • When effects on historic properties are similar and repetitive or are multi-State or regional in scope;
  • When effects on historic properties cannot be fully determined prior to approval of an undertaking;
  • When non-Federal parties are delegated major decision-making responsibilities;
  • Where routine management activities are undertaken at Federal installations, facilities, or other land management units; or
  • Where other circumstances warrant a departure from the normal Section 106 process.

Consultation with the SHPO and consulting parties to develop a PA for dealing with adverse effects of complex projects or multiple Undertakings should follow the same protocols outlined under §800.6.

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NHPA: Resolving adverse effects to historic properties by your project

Once the Lead Federal Agency has determined that historic properties may be adversely affected by your project,  then the next step is to resolve adverse effects on the historic properties by your project.

Under §800.6, the Lead Federal Agency starts by notifying and consulting with the SHPO and consulting parties, as well as developing and evaluating alternatives or modifications to the Undertaking that could avoid, minimize or mitigate adverse effects on historic properties.

What should be included in adverse effects notifications?

The documentation required to accompany such a notification is listed at §800.11(e) of the regulations implementing Section 106. They include the following:

  • A description of the Undertaking, specifying the Federal involvement (land, funding or permit), and its APE, including photographs, maps and drawings, as necessary;
  • A description of the steps taken to identify historic properties;
  • A description of the affected historic properties, including information on the characteristics that qualify them for the National Register;
  • A description of the Undertaking’s effects on historic properties;
  • An explanation of why the criteria of adverse effect were found applicable or inapplicable, including any conditions to avoid, minimize, or mitigate adverse effects; and
  • Copies of summaries of any views provided by consulting parties and the public.

The notification is typically also accompanied by a copy of the identification and evaluation technical reports for reference. In addition to the notifications and consultation outlined above, the Lead Federal Agency can also choose to notify the Advisory Council on Historic Preservation (ACHP), an independent Federal agency that promotes the preservation, enhancement, and productive use of our Nation’s historic resources and advises the President and Congress on national historic preservation policy. If the ACHP decides to participate in the consultation, they too must be consulted about resolving adverse effects.

How does resolving adverse effects work?

Typically, taking into consideration the comments of the SHPO and all the consulting parties, the Lead Federal Agency (or the consultant) shall draft a Memorandum of Agreement (MOA), which is an agreement between all the parties on how the adverse effects will be resolved. The MOA documents the Lead Federal Agency’s compliance with Section 106 and the agreement will govern how the Undertaking is carried out going forward.

What are the parts of an MOA?

  • Title: MOA Among Parties 1,2,3 regarding the ABC Project
  • Whereas Clauses: Background Section
    • Who? — Federal Lead Agency, other consulting parties
    • What? –Undertaking
    • Where? –APE Description
    • When? –Construction Schedule Estimate
    • Why? –Purpose and Need
    • Authorities?
    • Constraints?
  • Stipulations (Actions): The Lead Federal Agency will ensure that the following stipulations are implemented
    • What will be done
    • Who will do what
    • When will it be done
  • Stipulations (Administrative): The MOA’s guidance system
    • Dispute resolution
    • Performance monitoring
    • Sunset
    • Amendment
    • Termination
    • Personnel Qualifications
    • Severability
    • Bonding (where applicable)
    • Conditioned upon funding: always stipulate what happens if funds are not available
  • Conclusion: Execution of this MOA, together with its submission by the Federal Lead Agency to the ACHP pursuant to 36 CFR 800.6(b)(1)(iv) and its implementation, evidences the Federal Lead Agency has taken into account the effects of the Undertaking on historic properties, and has afforded the ACHP a reasonable opportunity to comment on the Undertaking.
  • Signature Blocks:
    • Signatories: Any party that assumes a responsibility under the MOA (Agency, SHPO/THPO, Invited Signatories, and the ACHP if participating)
    • Concurring Parties: consulting parties

What happens if adverse affects cannot be resolved?

After consulting to resolve adverse effects, the Lead Federal Agency, the SHPO/THPO, or the ACHP may determine that further consultation will not be productive and terminate consultation. Any party that terminates consultation shall notify the other consulting parties and provide them the reasons for terminating in writing. Usually when consultation is terminated, the ACHP renders advisory comments to the head of the agency, which must be considered when the final agency decision on the undertaking is made. There may be circumstances where ACHP will recommend further discussion to try to resolve the matter.

The next post in this series will focus on the following:

5. Other Section 106 considerations

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NHPA: Assessing adverse effects to historic properties by your project

Once the Lead Federal Agency has identified that historic properties may be affected by your project,  then the next step is to assess adverse effects on the historic properties by your project.

Under §800.5, the Lead Federal Agency starts by applying the criteria of adverse effect in consultation with the SHPO/THPO and any Native American or Native Hawaiian organization that attaches religious and cultural significance to the historic properties.

What is the criteria of adverse effect?

If your undertaking or project may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register of Historic Places, and as a result diminish the historical integrity of the property’s location, design, setting, materials, workmanship, feeling or association, your project meets the criteria for having an adverse effect on a historic property.

What are some examples of adverse effects?

Your undertaking or project will meet the criteria of adverse effect in the following types of situations:

  • Physical destruction of or damage to all or part of a historic property;
  • Physical alteration of a historic property that is not consistent with the Secretary of the Interior’s standards for the treatment of historic properties (36 CFR part 68), including:
    • restoration
    • rehabilitation
    • repair
    • maintenance
    • stabilization
    • hazardous material remediation, and
    • provision of ADA access;
  • Physical removal of the historic property from its historic location;
  • Change of the character of the historic property’s use or of physical features within the property’s setting that contribute to its historic significance;
  • Introduction of visual, atmospheric or audible elements that diminish the integrity of the historic property’s significant historic features;
  • Neglect of a historic property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property of religious and cultural significance to a Native American or Native Hawaiian organization; and
  • Transfer, lease or sale of a historic property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the historic property’s significance.

How does assessing adverse affects to historic properties work?

Lastly, if no Historic Properties will be adversely affected by the Project or Undertaking, because the land developer was able to redesign their project to avoid adverse effects to historic properties, the Lead Federal Agency must provide notification of this finding to the SHPO, all consulting parties, and make the notification available for public inspection prior to approving your project or Undertaking.

If Historic Properties will be affected by the Project or Undertaking, because there are historic properties which may be affected by the Undertaking, the Lead Federal Agency must notify the SHPO and all consulting parties, invite their views on resolving the effects, and the next step is to resolve adverse effects, in accordance with §800.6.

 

The next few posts in this series will focus on the following:

4. Resolving adverse effects to historic properties by your project
5. Other Section 106 considerations