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.

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.

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

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

Spindrift receives Gold Shovel Standard certification

As of April  2017, Spindrift has been approved by the Certification Committee to obtain a Gold Shovel Standard Certification. Gold Shovel Standard (GSS) is a nonprofit organization that fills an industry gap by providing third-party confirmation of baseline Safety Management Systems for the protection of buried assets, and fair and transparent metrics for damage prevention. Gold Shovel Standard certified organizations can be recognized to be best-in-class. Learn more at: http://www.goldshovelstandard.com.

Spindrift is now an ISNetworld Member – With an "A" Grade!

We are pleased to announce that Spindrift Archaeological Consulting (Spindrift) is an active member of ISNetworld (ISN). We have centralized our company compliance data within ISN and streamlined our reporting process, making it easier for Pacific Gas & Electric to prequalify our company and give us an “A” Grade.
Clients such as Roebbelen Contracting Inc.have evaluated Spindrift through ISNetworld. We have made the following information available to our clients in an electronic format, which is available online 24 hours a day.
  • Health, Safety, and Environmental Questionnaire
  • Insurance Certificates
  • OSHA Forms
  • Experience Modification Rate (EMR) Letters
  • Written Health, Safety, and Environmental Programs
  • Training Information
  • Reporting of Hours and Incidents by Month
ISN’s Review and Verification Services (RAVS) verifies and evaluates our health, safety, and procurement information to ensure regulatory and client specific requirements are met.
We encourage you to contact ISN at (800) 976-1303 or visit their website: www.isnetworld.com to learn more about our firm’s record and grade, or to make use of this great tool.

NHPA: Identifying historic properties potentially affected by your project

Once you’ve determined that Section 106 applies to your project,  then the next step is to identify any historic properties potentially affected by your project or Undertaking.

Under 36 CFR 800.4, one starts by determining the Scope  of the Identification Effort, or the Project Area of Potential Effects (APE). The Project APE consists of the horizontal and vertical limits of the project, and includes the area within which adverse effects to Historic Properties could occur as a result of the project. The Project APE subject to environmental review under Section 106 includes all areas where activities associated with the project are proposed. The APE should encompass areas proposed for construction, vegetation removal, grading, trenching, stockpiling, staging, paving, and other activities that should be thoroughly described when developing the official Project Description.

The horizontal APE includes the maximum footprint of the Project on the ground surface and should represent the inventory survey coverage area for cultural resources such as archaeological sites, historic buildings and structures, as well as Tribal Cultural Resources.

The vertical APE includes the maximum depth below the surface to which excavations for project foundations and facilities will extend. Thus, it includes all subsurface areas where archaeological deposits could be affected and varies across the Project APE, depending on the type of infrastructure planned. The vertical APE also is described as the maximum height of project features, such as proposed buildings and structures, which could impact the physical integrity and integrity of setting of cultural resources, including districts and traditional cultural properties.

How does the identification process work?

Typically, the land developer, their consultant, and Federal Lead Agency first work together to conduct some preliminary desktop research. This desktop research includes activities such as requesting a records search from appropriate record holding offices, conducting a literature review of relevant previous studies conducted on the Project site or its immediate vicinity (typically a one-mile radius minimum), and carrying out local Tribal or Historic Society coordination activities to inquire about the presence of cultural resources they may have knowledge about. The APE may be adjusted based on these findings.

Second, the consultant will conduct a field site pedestrian survey of the Project APE to field check any previously identified cultural resources that were found during the desktop research and identify any new cultural resources that have the potential to be eligible for listing on the National Register of Historic Places, and thus be considered a “Historic Property”.

Once all the resources have been identified, the third step is to have the consultant evaluate their historic significance  by applying the National Register criteria (36 CFR part 63) to resources identified within the Project APE that have not been previously evaluated for National Register eligibility. Once the results of the eligibility evaluation are complete, and the consultant has provided the Federal Lead Agency with documentation that includes recommendations of eligibility for each resource and an impact assessment (whether or not each potentially eligible resource will be adversely affected by the Project), the lead agency must make the final determination that the criteria have or have not been met for each resource.

Next,  the Federal Lead Agency must consult with the State Historic Preservation Officer (SHPO) to ask if they agree (or concur) with the delineation of the APE and the eligibility determinations. If the SHPO concurs, the resource(s)  shall be considered eligible or not eligible for the National Register for Section 106 purposes, respectively.

Lastly, if no Historic Properties will be affected by the Project, because either there are no historic properties present or there are historic properties present but the Undertaking will have no effect upon them as defined in §800.16(i), theFederal Lead Agency must provide documentation of this finding, as set forth in §800.11(d), to the SHPO, notify all consulting parties, and make the documentation available for public inspection prior to approving your project or Undertaking.

If Historic Properties will be affected by the Project, because there are historic properties which may be affected by the Undertaking, the lead agency must notify all consulting parties, invite their views on the effects, and the next step is to assess adverse effects, if any, in accordance with §800.5.


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

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

 

Five National Historic Preservation Act Compliance Basics Every Land Developer Needs to Know

Land developers, whether they are public agencies or private companies, spend a considerable amount of time learning how to comply with federal regulations to successfully complete their projects. Section 106 of the National Historic Preservation Act (NHPA) is one of the federal regulations that most commonly affects development projects.

Every land developer needs to be familiar with these five concepts to minimize risk. This post is the first of a five part series covering the basics of Section 106 compliance.

Does Section 106 of the NHPA apply to your project?

Section 106 of the NHPA requires land developers to take into account the effects of their projects on historic properties. The Section 106 process seeks to accommodate historic preservation concerns with the needs of land development. The goal of this process is to identify historic properties potentially affected by the project, assess the project’s effects on those properties, and seek ways to avoid, minimize or mitigate any adverse effects on those historic properties.

Your project will be subject to the Section 106 process if the project, activity, or program is funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including:

1) those carried out by or on behalf of a Federal agency;

2) those carried out with Federal financial assistance (ex. HUD funding); or

3) those requiring a Federal permit, license or approval (ex. Section 404 of the Clean Water Act permit).

If you’ve determined that Section 106 does apply to your project, your project is considered to be an “Undertaking” and the next step is to identify any historic properties potentially affected by your project.

Refer to 36 CFR §800. 1 to 800.3 for more considerations regarding your Undertaking and initiation of the Section 106 process.


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

2. Identifying historic properties potentially affected by your project
3. Assessing adverse effects to historic properties by your project
4. Resolving adverse effects to historic properties by your project, and
5. Other Section 106 considerations

Six steps to AB 52 legal compliance

By including tribal cultural resources early in the California Environmental Quality Act (CEQA) process, the legislature intended to ensure that local and Tribal governments, public agencies, and project proponents would have information available, early in the project planning process, to identify and address potential adverse impacts to tribal cultural resources. By taking this proactive approach, the legislature also intended to reduce the potential for delay and conflicts in the environmental review process. These new rules apply to projects that have a notice of preparation for an environmental impact report or negative declaration or mitigated negative declaration filed on or after July 1, 2015. The new provisions in the Public Resources Code proscribe six specific steps and timelines governing the notice and consultation process. Those steps are summarized below.

Step 1) The Native American Heritage Commission (NAHC) will provide each Tribe in California with a list of all public agencies that may be lead agencies under CEQA within the geographic area with which the tribe is traditionally and culturally affiliated, the contact information of those public agencies, and information on how the Tribe may request consultation. This list must be provided on or before July 1, 2016 (Pub. Resources Code, § 5097.94 (m)).

Step 2) If a tribe wishes to be notified of projects within its traditionally and culturally affiliated area, the tribe must submit a written request to the relevant lead agency (Pub. Resources Code, § 21080.3.1 (b).), requesting to be added to the lead agency’s AB 52 Consultation List.

Optional Step 2A-Some lead agencies might like to proactively establish an AB 52 Consultation list, rather than wait to be contacted by Tribes individually starting in 2016.

Step 3) Within 14 days of the lead agency determining that a project application is complete, or that the lead agency will undertake a project (via a notice of preparation for an environmental impact report, negative declaration or mitigated negative declaration filed on or after July 1, 2015), the lead agency must provide formal notification, in writing, to the Tribes that have requested notification of proposed projects as described in step 2, above, on the AB 52 Consultation List. That notice must include a description of the project, its location, and must state that the tribe has 30 days to request consultation.

Step 4) If it wishes to engage in consultation on the project, each AB 52 Consultation List Tribe must respond to the lead agency within 30 days of receipt of the formal notification described in step 3, above. The Tribe’s response must designate a lead contact person. If the Tribe does not designate a lead contact person, or designates multiple people, the lead agency shall defer to the individual listed on the contact list maintained by the NAHC. If no Tribes request consultation within 30 days of receipt of the lead agency’s formal notification, then the AB 52 process ends and steps 5 and 6 below are not required.

Step 5) The lead agency must begin the consultation process with the tribes that have requested consultation within 30 days of receiving the request for consultation.

Step 6) Consultation concludes when either: 1) the parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource, or 2) a party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached. (Pub. Resources Code, § 21080.3.2 (b)(1) & (2).) Note that consultation can also be ongoing throughout the CEQA process.

Photo Credit: Coyote Mountain, Anza Borrego courtesy of artist Mary-Austin Klein.  Check out her paintings. They’re amazing!

Assessing the Effects of Climate Change on Historic Properties

Point_Loma_LighthouseIn 2014, the Environmental and Energy Study Institute and the Union of Concerned Scientists (USC) held a press conference to discuss a new report on the risks that climate change presents to landmarks and historic sites across the nation. The report, titled “National Landmarks at Risk: How Rising Seas, Floods, and Wildfires Are Threatening The United States’ Most Cherished Historic Sites,” [http://www.eesi.org/briefings/view/052014landmarks] focuses on how sea level rise, coastal erosion, increased flooding, heavy rains, and larger wildfires are damaging archaeological sites, historic buildings, and cultural landscapes. Society for American Archaeology President, Dr. Jeffrey Altschul, delivered remarks focused on the importance of protecting archaeological sites from climate change.

Currently, protecting historic sites from climate change has been done one site at a time, in a “save my lighthouse approach,” which will over time become cost prohibitive. Dr. Altschul asserts that there must be a shift in thinking, in which we as a nation assess what historical sites and landmarks we want to save and can be saved.

Technological advances are not our only tool to solve the challenge of climate change. Information we have about humanity’s responses to past climate change, gathered through archaeological research, can also be used to determine the best way to deal with these challenges.

Even with significant efforts to mitigate GHG emissions today, future climate projections anticipate that climate change may have significant effects on precipitation, temperature, and weather patterns.

  • Rising sea levels are eroding coastal sites and cemetaries.
  • Rising temperatures will pose threats to wooden buildings as termites and other pests are able survive at higher latitudes and altitudes.
  • Increased rainfall and river flow and downcutting is eroding mud-brick ruins and buried archaeological sites.
  • Increased lightning and fires are destroying historic buildings and archaeological sites, as well as creating conditions for increased erosion of buried archaeological sites.
  • Creeping desert sands are blasting the traces of ancient civilizations.
  • The melting of ice is causing millennia-old organic remains preserved in ice to become exposed and rot.
  • As coastal communities relocate inland, inland sites will be impacted.

Now is the time to assess your property for archaeological sites, historic buildings, and cultural landscapes that may be impacted by the effects of climate change, or that have already been damaged by erosion or wildfires. The next step is to take action to resolve the effects of climate change on historic properties.

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.

Photo: A view of the lighthouse at Point Loma, San Diego. Credit: U.S. Navy.