NPS-28: CULTURAL RESOURCE MANAGEMENT GUIDELINE

In the National Historic Preservation Act of 1966, Congress declared that "the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people." Passed in response to the destruction of historic and prehistoric resources by federally sponsored actions such as highway construction, water impoundments, and urban renewal, the act requires federal agencies to establish programs for evaluating and nominating properties to the National Register of Historic Places and to consider the effects of their undertakings on listed or eligible properties.

A. Section 106 of the National Historic Preservation Act

Section 106 mandates that federal agencies take into account the effects of their actions on properties listed or eligible for listing in the National Register and give the Advisory Council on Historic Preservation a reasonable opportunity to comment. While it does not require the preservation of such properties, it does require that their historic or prehistoric values be considered in weighing the benefits and costs of federal undertakings to determine what is in the public interest. Its practical effect is to encourage agencies to seek ways to avoid or minimize damage to cultural resources. Agencies must recognize properties important to communities as well as to the nation as a whole, so they need to be aware of the interests of local groups and individuals. The goal of the process is to make sure that preservation is fully considered in federal actions, thereby protecting our shared heritage from thoughtless or ill-considered damage.

The Advisory Council's regulations, Protection of Historic Properties (36 CFR Part 800), define the process of review and consultation by which federal agencies must take into account the effects of their undertakings and enable the Council to comment. The regulations emphasize participation in this process by state historic preservation officers (SHPOs) and the public, including Native American groups.

The regulations are important both as procedure and as guidance to the main issues and thought processes involved in Section 106 compliance. In some cases affected resources or the effects of an undertaking on them can be readily assessed and the procedures may be compressed.

The regulations emphasize starting the Section 106 process early in planning an undertaking, when the greatest range of alternatives is open. This means integrating Section 106 review into National Park Service processes for long-range planning and park operations and, as appropriate, coordinating with procedures in the Planning Process Guideline (NPS-2) and the NEPA Guideline (NPS-12). A Servicewide Programmatic Agreement, discussed below, sets up a framework for Section 106 review of park planning documents.

B. Section 110 of the National Historic Preservation Act

This section of the law gives federal agencies positive responsibility for preserving historic properties in their ownership or control. It calls for them to use such properties, where feasible and compatible with their preservation, in preference to acquiring, constructing, or leasing others. Agencies are also directed to establish preservation programs to identify, evaluate, protect, and nominate to the National Register historic properties under their ownership or control, whether they are of significance at the local, state, or national level. The law emphasizes cooperation with SHPOs in establishing such programs.

Under Section 110, park managers need to set priorities and long-range strategies for comprehensive inventories of all park lands to identify Register-eligible properties, using resources management plans and other budget and management tools. NPS staff should confer with SHPOs about designs for and results of cultural resource surveys and about historic contexts for evaluating properties. In evaluating park properties, use of relevant historic contexts developed by SHPOs is most efficient and aids integration of park planning with state processes. Inventories should include resources believed ineligible for the National Register as well as those believed eligible.

Section 110 guidelines have been published to aid federal agencies in meeting these provisions. These are available from the Heritage Preservation Services Program in the NPS National Center for Cultural Resources Stewardship and Partnership Programs.

Comprehensive survey work geared to National Register criteria can greatly facilitate the Section 106 process, because the first steps in the process are identification and evaluation of properties to determine whether they are Register-eligible. As indicated in the Advisory Council's regulations (36 CFR 800.4[c][1]), however, previously evaluated properties may need to be reevaluated as time passes and ideas about significance change. This may entail new research as well as review of existing documentation.

C. Responsibilities of the Superintendent

For purposes of Section 106 and the Advisory Council's regulations, park superintendents are the "agency officials" responsible for adherence to policies and legal procedures in NPS activities under their jurisdiction. Superintendents set management priorities that largely determine the framework for carrying out the mandates in Sections 106 and 110 through long-range planning and operational decisions. They inform and involve appropriate cultural resource specialists, SHPOs, and others about park needs and priorities. Gaps in baseline data on cultural resources, staffing, funding, and training needs are among their concerns.

Superintendents ensure that all undertakings in their parks, including those carried out by the Denver Service Center (DSC) or outside parties, are identified, documented, and considered as appropriate for purposes of Section 106 review. They begin the process early enough to meet NPS legal and regulatory responsibilities and use formats providing the information required in 36 CFR Part 800. They involve interested parties and the public in park planning processes as needed to fulfill responsibilities under 36 CFR Part 800. They see that undertakings are carried out in accordance with any conditions or stipulations that resulted from the Section 106 process. Section F.5 below discusses the superintendent's role in preparing park-specific programmatic agreements for Section 106 compliance.

Superintendents designate a park Section 106 coordinator to provide day-to-day staff support in all these areas and to serve as liaison among park, DSC, support office, and other staff members involved in undertakings and park CRM. The superintendent should see that the park coordinator, and park staff generally, receive appropriate training. The Section 106 coordinator's position description and performance standards should include his or her role in Section 106 compliance.

The superintendent also selects CRM specialists qualified to provide technical and professional advice and services needed for Section 106 purposes. They may be on the park staff or in other parks, support offices, NPS centers, or elsewhere. These specialists provide CRM expertise in project formulation, development and review of Section 106—related documentation, and project monitoring.

D. Responsibilities of the Regional Director

Regional directors ensure that the park role in meeting Section 106 and other legal compliance responsibilities is covered in park managers' performance standards and park program evaluations. Regional directors are also available if SHPOs or the Advisory Council wish to bring a park issue to their attention.

E. When to Initiate Consultation

For purposes of Section 106, the Advisory Council's regulations define an undertaking as "any project, activity, or program that can result in changes in the character or use of historic properties" whether federal agency jurisdiction is direct or indirect. Actions carried out by or on behalf of a federal agency that could alter aspects of the location, design, setting, materials, workmanship, feeling and association, or use of a Register-listed or eligible property should be carefully considered to analyze possible effects on historic qualities and research potential. Continuing activities and any of their elements not previously considered under Section 106 are included in the definition of undertaking. Federal funding, licensing, permitting, or approval are included by law, as are projects or programs subject to state or local regulation administered pursuant to a delegation or approval by a federal agency. Undertakings include obvious interventions such as installation of new plantings or fences in a Register-eligible cultural landscape, rehabilitating historic park quarters, and ground-disturbing activity. Undertakings also include new construction that could affect the setting of a historic property and other actions that could introduce visual or audible elements out of keeping with its historic character. NPS involvement with, or requirements imposed on, concessioners or lessees may include undertakings. Not every park activity is an undertaking, but those that have the potential to affect properties that meet National Register criteria, whether or not any such properties have been identified yet, are subject to Section 106 review. If a park is uncertain about whether an action is subject to review, advice from the park's CRM advisers or the SHPO should be sought.

Park program managers and supervisors collaborate with the superintendent or park Section 106 coordinator to ensure that cultural resource specialists are involved and consulted, and Section 106 documentation is prepared, in a timely manner. Cyclic maintenance programs, work orders, budget documents, and various plans can all provide valuable information for evaluating upcoming undertakings. Cultural resource specialists can help parks develop procedures and documentation.

If it appears that a project is an undertaking, Section 106 consultation should begin as the scope of a proposal or alternative proposals is identified. The process should start early in planning or project development so that comments received can be fully considered in shaping the undertaking or planning proposal. In planning and budgeting, the Section 106 process should be factored into NPS project schedules and coordinated with any required NEPA consultation. Consultation must not be delayed until a proposal has become unalterable, thus foreclosing the Council's and SHPO's opportunity to provide effective comment, or until a project may have to be deferred or canceled for procedural reasons.

F. The Regulatory Section 106 Compliance Process

1. Identifying Historic Properties (36 CFR 800.4)

All parks, including those established primarily for their natural or recreational resources, have responsibilities to identify historic properties potentially affected by undertakings. (For Section 106 purposes, historic properties are defined as prehistoric and historic districts, sites, buildings, structures, and objects listed or eligible for inclusion in the National Register. Cultural landscapes and archeological and ethnographic resources that meet Register criteria are included.)

At the earliest possible stages in project planning, several considerations should be addressed:

• What is the undertaking's area of potential effect? It may extend beyond park boundaries. Evaluating where effects may occur in a broad, comprehensive way is a key factor in the rest of the Section 106 process.

• What information exists about cultural resources in the area of potential effect? The published listings of National Register properties or the automated National Register Information System database should be consulted, but these include only properties already identified and evaluated. Often more information is needed to establish whether eligible properties exist in the area of potential effect. The List of Classified Structures, Cultural Sites Inventory, and documents such as historic resource studies and archeological reports should also be reviewed. SHPOs and other sources of archeological information may have relevant data. If Register documentation is not current and complete, inventories such as the LCS may indicate that a property is Register-eligible, but the scope and adequacy of such inventory data also needs analysis. The Advisory Council's regulations recognize that perceptions of significance may change as time passes, so it may be necessary to reevaluate whether a property is eligible for the National Register. Also, the characteristics that make a property eligible may not be adequately described in existing documentation and should receive thoughtful consideration.

• What additional information is needed to determine whether other potentially eligible historic properties exist in the area of potential effect? Federal agencies are responsible for consulting the SHPO and other parties, including Native American groups, likely to be knowledgeable or concerned about this point. It may be necessary to have cultural resource specialists directly examine the area, especially when comprehensive survey work has not been conducted there before.

Properties identified in the area of potential effect must be evaluated according to the National Register criteria, in consultation with the SHPO. Generally speaking, if the SHPO and an agency agree in writing that a property is eligible or not eligible, that judgement is sufficient for Section 106 purposes. If there is disagreement, the park requests a formal determination of eligibility from the Keeper of the National Register. Procedures for that process are in 36 CFR Part 63, "Determinations of Eligibility for Inclusion in the National Register of Historic Places," and are referenced in 36 CFR 800.4.

If no historic properties are found in the area of potential effect, the NPS must provide the SHPO and interested persons with documentation of this finding. (See the Advisory Council's Identification of Historic Properties: A Decision-Making Guide for Managers for more guidance.)

2. Assessing Effects (800.5)

The next major stage in the Section 106 process is to apply criteria of effect and adverse effect (specified in 36 CFR 800.9) to determine whether or not the undertaking will affect historic properties and whether any effects will be adverse. This too is done in consultation with the SHPO.

The office that plans and will undertake a project–usually park or DSC staff–prepares the Section 106 documentation, in consultation with CRM specialists and others as appropriate. The documentation provides information about historic properties in the area of effect and about the project's potential effects on those properties. See 36 CFR 800.8 and the Advisory Council's publication Preparing Agreement Documents: How to Write Determinations of No Adverse Effect, Memoranda of Agreement, and Programmatic Agreements Under 36 CFR Part 800 for more information about documentation requirements. Appendix O has an NPS sample form, "Assessment of Actions Having an Effect on Cultural Resources," that may be helpful as a model format in some cases.

The park uses relevant cultural resource specialists as needed to develop project proposals, to review documentation, and to provide advice and assistance. They assess whether further information is needed to identify or evaluate historic properties and advise on other preservation issues, standards, policy, and techniques, in preparation for review by the SHPO and, as necessary, the Council. (Under the 1995 NPS Servicewide Programmatic Agreement, there are some specific exceptions to SHPO and Council review, known as programmatic exclusions, described in Section G below and Appendix P. These exclusions are documented and reviewed, like other undertakings, with the involvement of the park's relevant CRM specialist advisers. SHPOs and the Council may review these records upon request.)

The Advisory Council's criteria of effect require agencies to take a broad view of an undertaking's impact and its long-range implications. Does the undertaking have the potential to alter characteristics of historic properties such as location, design, setting, workmanship, materials, feeling, and association? Will it cause visual, audible, or atmospheric intrusions not in keeping with a property or its setting, or change the use of the property? Destruction, damage, and alteration of historic materials are obvious examples. Ground-disturbing activities, such as those that may result from modifications to buildings or landscapes, may affect archeological resources. Effects may result not only from actions having a direct physical impact on cultural resources, but also from undertakings near or visible from an eligible property inside or outside a park boundary. Often they result from actions not carried out for purposes of cultural resource management, such as the construction of a new maintenance facility or sewer line, or use of borrow pits or dumping sites on or off NPS lands. Even failure to take some action, whether deliberate or inadvertent, can result in an adverse effect under 36 CFR Part 800 when it constitutes "neglect of a property resulting in its deterioration or destruction." Indirect or less immediate effects such as increased visitor use, vandalism, and daily wear are also considered. Transfer, sale, or lease of a historic property may have an adverse effect unless adequate restrictions or safeguards are included in the transaction.

National Register documentation should always be examined in assessing an undertaking's effect on a listed property. Because Register documentation may be outdated or incomplete, however, do not assume that every aspect of a property's significance has been included in a nomination. Similarly, even if it has been established that an action will not affect one type of cultural resource, the NPS must consider whether previously unidentified cultural resources of different types may exist in the project area. For example, archeological survey of an area may not identify structures or cultural landscape values that should also be evaluated and considered. This is why it is important for the park Section 106 coordinator to involve a team of specialists representing all relevant cultural resource disciplines.

Application of the criteria of effect and adverse effect will yield one of three findings: no effect, no adverse effect, or adverse effect. (For more guidance, see the Advisory Council's Preparing Agreement Documents.)

a. Finding of No Effect

When the park finds that an undertaking will have no effect on National Register—eligible properties, regulations require notification of the SHPO and interested persons who have made their concerns known. If the SHPO does not object within 15 days, Section 106 responsibilities have been met. If the SHPO does object, the park proceeds to apply the criteria of adverse effect, again in consultation with the SHPO. Documentation of no-effect findings and evidence of consultation with SHPOs must be retained in park files. For DSC planning efforts, this documentation is also retained in the "Record of Statutory Compliance" files.

b. Finding of No Adverse Effect

If the park finds that there will be an effect but that it will not be adverse, it invites the SHPO to concur. If the SHPO agrees with the "no adverse effect" finding, the park sends the Advisory Council summary documentation on the undertaking including evidence of SHPO concurrence. If the Council does not object to the NPS finding within 30 days, the Section 106 process is complete, provided that the NPS meets any conditions or stipulations developed during consultation.

c. Finding of Adverse Effect

An undertaking may be in the public interest even though it will impair cultural resources. The Section 106 process is designed to ensure that decisions are made with full awareness of the nature of the resources affected and the specific effects an action will have, and that feasible ways to avoid or minimize adverse effects are fully considered and acted upon. Location or design alternatives, for example, may reduce if not eliminate potential damage. The loss of historic structures and archeological resources may be mitigated by recording and data recovery. The benefits to be derived from an undertaking do not constitute mitigation, however, and measures that minimize but do not avoid adverse effects do not justify a finding of no adverse effect, except as specified in 36 CFR 800.9(c)(1).

3. Consultation (800.5[e])

If an undertaking will adversely affect National Register—eligible properties, the park notifies the Advisory Council and enters into consultation with the SHPO about ways to avoid or mitigate the potential effect(s). Historians, archeologists, historical architects, ethnographers, curators, and cultural landscape architects may all play roles in this process as needed. This consultation generally results in a memorandum of agreement (MOA) recording any conditions that the NPS must meet in carrying out the undertaking. The Advisory Council may also participate in consultation; for adverse effects on national historic landmarks, it must do so.

Other interested groups and individuals, at their request, may be invited to act as consulting parties. The National Historic Preservation Act emphasizes federal agency responsibilities to consult with Indian tribes or Native Hawaiian organizations in carrying out Section 106 processes involving properties with traditional cultural or religious significance to them. Also, the NPS and other agencies provide opportunities for the public to be informed and express views. The Advisory Council's regulations encourage the use of each agency's procedures for public involvement, such as NEPA review, to meet this need. The Council's Public Participation in Section 106 Review, which provides more guidance in this area, indicates that agencies should involve the public "in a flexible manner that reflects the type of undertaking under consideration, the agency's administrative processes, and the nature of known or expected public interests."

4. Advisory Council Comment

If the Advisory Council did not take part in the consultation process on an adverse effect and sign the MOA as a participant, the park submits the MOA and other specified information to the Council for review. The Council has 30 days to accept the MOA, recommend changes to it, or decide to comment on the undertaking. In the last instance, the Council has additional time to provide comments. It is important for the NPS to demonstrate that SHPO and Council comments have been fully considered in reaching a final decision about an undertaking.

5. Groups of Undertakings and Programmatic Agreements

Related or similar undertakings can be grouped for purposes of Section 106 review when their effects on historic properties are similar and repetitive and in some other cases. Programmatic agreements (PAs), described in 36 CFR 800.13, are the formal vehicles for such groupings of undertakings. They result from consultation among the park, the Advisory Council, and affected SHPOs.

Parks can use PAs to facilitate compliance for aspects of a park's operations that involve routine activities carried out repeatedly. A PA may cover day-to-day operational undertakings, or small repetitive projects that arise occasionally or seasonally, to avoid the inefficiencies of seeking comment on such activities as individual occurrences. The superintendent could also, for example, request Council and SHPO review of a maintenance program or a cultural landscape report as a cluster of undertakings. PAs can also be negotiated for programs and projects that involve regional planning or more than one state. If it is not possible to fully determine an undertaking's effects in advance, a PA can clarify procedures for meeting Section 106 responsibilities. A PA may also be an effective means of ensuring compliance when the NPS is involved in a cooperative effort, such as a national heritage corridor, where other parties have significant management responsibilities.

PAs are most likely to be developed successfully for parks whose cultural resources have been comprehensively surveyed, evaluated, and registered, enabling future activities to be planned and carried out in full awareness of their locations, types, and significance.

G. 1995 Servicewide Programmatic Agreement

The 1995 Servicewide Programmatic Agreement (text in Appendix P) tailors the Section 106 process to NPS program needs in certain ways. It recognizes that the NPS has qualified cultural resource specialists on staff and uses policies and guidelines, as well as the Secretary's Standards, to manage cultural resources consistent with the intent of the National Historic Preservation Act. This PA supersedes the 1979 Servicewide Programmatic Memorandum of Agreement (PMOA) and its amendments as well as the 1990 Servicewide PA.

One goal of the PA is to improve communications among NPS and SHPO offices about NPS programs related to Sections 106 and 110 of the National Historic Preservation Act. Another is to provide for early involvement by SHPOs and the Advisory Council in NPS planning processes, while giving them some flexibility to choose the degree of their involvement. Standard Section 106 consultation procedures are the framework for carrying out Section 106 review of undertakings in plans and should be coordinated with NPS planning processes.

1. Programmatic Exclusions (Stipulation IV)

Under the PA, for specified types of actions unlikely to have adverse effects on cultural resources–"programmatic exclusions"–NPS internal review for Section 106 purposes need not be followed by SHPO or Advisory Council review, provided that:

• the undertaking is based on information adequate to identify affected cultural resources and evaluate their eligibility for the National Register, including not only archeological resources and historic structures but also cultural landscape and ethnographic values;

• NPS internal review finds that the undertaking's effect on cultural resources will not be adverse; and

• the undertaking will be carried out in conformity with applicable policies, guidelines, and standards; it must be documented and reviewed via appropriate procedures.

The specific types of undertakings that are programmatic exclusions are listed in Stipulation VI.B of the 1995 PA. Although they are called exclusions, this means only that they are excluded from review by SHPOs and the Council if they meet the conditions specified in the PA. They must still be reviewed and documented within the NPS, using appropriate CRM advisers.

2. Planning (Stipulation VI)

The PA also provides a framework for coordinating Section 106 review with NPS planning processes. General management plans (GMPs) and development concept plans (DCPs) may facilitate Section 106 consultation if the NPS has adequately identified and evaluated cultural resources and has information sufficient to apply the criteria of effect and adverse effect in 36 CFR 800.9. The process in 36 CFR Part 800, including provisions on documentation and agreement documents, applies to undertakings in plans. Under the PA:

• The Advisory Council and SHPOs are informed and invited to advise the NPS about GMPs and DCPs (and other park plans as appropriate) beginning in early planning stages. Discussions before and during development of task directives or project agreements and in scoping processes can facilitate this process. Briefings and site visits may also be helpful. The issues analysis phase and the development of alternatives in the GMP process should include opportunities for the SHPO and Council to provide information and raise concerns. NPS requests for comment should specify that comments are sought under this PA.

• To coordinate park planning with the Section 106 review process, NPS assesses information available on GMP and component undertakings, requests comment on undertakings under the Advisory Council's standard review procedures, and keeps track when further consultation is needed to complete the compliance process after plan approval. Generally the phase of developing alternatives is a timely point to confer with the SHPO about individual undertakings in the plan. The component undertakings are categorized depending on whether there is sufficient information to complete the 36 CFR Part 800 process during plan development or whether further consultation after approval of the plan will be required because of insufficient information. If consultation on a given undertaking can be completed during planning, the final plan includes documentation of this consultation, in keeping with 36 CFR Part 800. (An adverse effect determination, for example, will require documentation consistent with 800.5[e] and 800.6.) The final plan also includes a list of the undertakings on which further consultation is required.

If major changes, such as development of a new preferred alternative, occur after release of the public comment draft, the NPS confers with the SHPO and Council about those changes before preparing the final draft.

3. Cooperation and Communications (Stipulation IX)

The PA prescribes biennial meetings between parks and SHPOs to discuss compliance issues, and it encourages information sharing about cultural resource inventory and research efforts in conformity with Section 110 of the National Historic Preservation Act.

The PA also commits SHPOs and the Advisory Council to treat the NPS as an interested party when they are reviewing undertakings by other federal agencies that may affect NPS areas. Park superintendents should inform SHPOs of the Service's interests in nearby lands or projects.