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,” [] 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.

SHPO Review for State-Owned Cultural Resources

USHouseCalifornia State Public Resources Code (PRC) 5024 requires that all state agencies preserve and maintain state-owned historical resources. Section 5024.5 outlines the process of meeting this mandate. The process gives the State Historic Preservation Officer (SHPO) the authority to review the efforts made by state agencies toward compliance with this law. State agencies must work with the SHPO to show that they are protecting and maintaining the historical resources (the term includes significant prehistoric, historic, ethnographic, and traditional cultural resources) on their Master List and that no development or maintenance projects will adversely impact those resources.

If the state agency holds title to land, or provides funding for acquisition, restoration, or development, PRC 5024 applies. Compliance with PRC 5024 should be included in the agency’s land acquisition, granting, and project development processes. For example, if the state agency acquires or provides acquisition funding for land, any historic buildings, features, or structures should be evaluated through a PRC 5024 review to see if they should be placed on the Master List. If the resource is, or will be, placed on the Master List, the agency must consult with SHPO about mitigation prior to demolition or alteration of the resource. Additionally, before any habitat restoration project funded by a state agency is undertaken, cultural resources studies need to be completed to evaluate the potential for adverse impacts to resources eligible for, or on, the Master List.

Spindrift staff are experienced with PRC 5024 compliance and stand ready to assist state agencies with technical studies, evaluations, and SHPO consultation. For questions and assistance, please contact: Arleen Garcia-Herbst at arleen@spindriftarchaeology or 858-333-7202.

Photo: Charless Noell brought the prefabricated U. S. House to San Diego in 1850. The house was purchased in San Francisco. Another story states that U. S., House began as a Sears kit. U. S. House began as a store, then later became a bar, restaurant, and boarding house. Credit: Kenneth A. Larson @