Attachment 3- NRCS National CR Procedures Handbook.pdf

(190-VI-NCRPH, First Edition, August 2003)

United States Department of Agriculture Natural Resources Conservation Service

National Cultural Resources Procedures Handbook

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, sex, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 14th and Independence Avenue, SW, Washington, DC 20250-9410 or call (202) 720-5964 (voice or TDD). USDA is an equal opportunity provider and employer.

Cover photo credit: NRCS Montana. Resource Conservationist (now NRCS Assistant State Conservationist, OK, Roylene Rides-at-the-Door-Waln measuring tipi ring, NRS photo gallery.

190 – National Cultural Resources Procedures Handbook i

TABLE OF CONTENTS

[Link to printable copy]

Subpart A – General

601.0 - Introduction and Purpose

601.1 - Background

Subpart B – Applications of NRCS Assistance to Undertakings with the Potential to Affect NRHP-Eligible Cultural Resources

601.10 - General Policy Summary

601.11 - 29 - Reserved

Subpart C – Procedures for Complying with Section 106 of the National Historic Preservation Act and Related Authorities

601.20 - Introduction

601.21 - Participants in the Section 106 Process: NRCS’ Consulting Parties

601.22 - Procedures for the Consideration of Cultural Resources in NRCS Undertakings:

Identifying, Avoiding, and Determining Impacts to Cultural Resources

601.23 - Assessing the National Register Eligibility of Resources Under Section 106 of the

National Historic Preservation Act: Procedures for Evaluating Cultural Resources for Eligibility for the National Register of Historic Places

601.24 - Assessing the Historic or Cultural Importance of Resources in Legislation other than the National Historic Preservation Act

601.25 - Procedures for Assessment and Resolution of Adverse Effects to Historic Properties

601.26 - Failure to Resolve Adverse Effects

601.27 - Procedures for the Withdrawal of Assistance

601.28 - Procedures for the Consideration of Cultural Resources During Emergency Work

601.29 - Procedures for Construction Discoveries

Subpart D – Procedures for Complying with Sections 110 and 112 of the National Historic Preservation Act

601.30 - The Stewardship of Cultural Resources: Preservation Partnerships

601.31 - NRCS’ Responsibilities to Preserve and Use Historic Buildings and Inventory Historic

Properties

601.32 - Establishing an Historic Preservation Program

601.33 - 39 - Reserved

Subpart E – Guidance for Implementing Related Compliance Procedures

601.40 - Planning for Discovery of Cultural Resources

601.41 - Establishing a Cultural Resource Reporting Mechanism

601.42 - Maintaining Access to Data and Reports

601.43 - Maintaining Compliance Documentation and Records

601.44 - Reviews for Buildings and Other Structures ii

601.45 - Guidelines for Establishing an MOA on Emergency Work

601.46 - FOIA Requests and Privacy Requirements

601.47 - 49 - Reserved

Subpart F – Standards and Criteria Used for Cultural Resources Compliance

601.50 - Cultural Resources Personnel Qualification Standards and Training

601.51 - National Register Criteria for Evaluation

601.52 - ACHP Criteria of Effect and Adverse Effect

601.53 - 59 - Reserved

Subpart G – Appendices

601.60 - Glossary of Terms

601.61 - NRCS May, 2002 Nationwide Programmatic Agreement with the Advisory Council for

Historic Preservation and the National Conference of State Historic Preservation Officers for Protection of Cultural Resources

601.62 - Guidance on NRCS Cultural Resources Consultation with American Indian Tribes in Accordance with the National historic Preservation Act of 1966 and Other Related Authorities

601.63 - Advisory Council Native American Program Guidance for Federal Agencies for Consultation with Indian Tribes and with Native Hawaiian Organizations, April 2003

601.64 - Summary of Cultural Resources Laws that Govern the Natural Resources Conservation Service’s Consideration and Treatment of Cultural Resources

601.65 - Summary of Regulations and Guidelines that Govern NRCS’ Consideration and Treatment of Cultural Resources

601.66 - Summary of Executive Orders that Govern NRCS’ Consideration and Treatment of Cultural Resources

601.67 - Resources of Scientific Value other than Cultural Resources

601.68 - Charts - Reserved

Part 601 – National Cultural Resources Procedures

Subpart A – General

601.0 - Introduction and Purpose

601.1 - Background

190 - National Cultural Resources Procedures Handbook

601-A.1

Part 601 - National Cultural Resources Procedures

Subpart A - General

601.0 Introduction and Purpose

A. The purpose of this handbook is to provide a procedural reference and guidance on processes the Natural Resources Conservation Service (NRCS), partners and consultants use to identify, evaluate and protect cultural resources, including historic properties, in compliance with the National Historic Preservation Act (NHPA –16 U.S.C. 470f, as amended) and several related authorities. The government-wide policy is found in the statute and NRCS’ implementing policy is found in the General Manual (GM 420, Part 401). This compliance takes place during the course of project and program planning, development and implementation, in consultation with specific state and federal agencies and American Indian tribal governments.

B. In 1966, Congress passed the NHPA and directed all Federal agencies to establish a (historic) preservation program. This program is intended to create policies and procedures that foster agency program and project development so that our modern society and our prehistoric and historic resources will co-exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.

Additionally, every agency was directed to give consideration to programs and projects which will further this goal.

601.1 Background

A. Every agency is expected to contribute to this purpose, whether or not conservation and preservation are part of its central mission. These efforts must be carried out in consultation with required concerned parties, including State, local, and Indian tribal officials, landowners, and interested citizens. All agencies are responsible for considering and consulting on the effects of their actions on historic and cultural places – including actions that they may assist or permit – and taking actions to avoid or minimize adverse effects. Agencies are expected to show leadership in encouraging non-Federal parties to minimize harm to historic and cultural resources under their control.

B. The directive is contained in Sections 106 and 110 of the NHPA. The NHPA recognizes that each agency has one or more central and important missions and encourages early incorporation of cultural resources considerations into the planning process in order to avoid mission conflicts.

C. Prior and subsequent to 1966, numerous other laws, regulations, executive orders and policy statements directed agencies to protect the cultural and human environment for current and future generations. NRCS must also comply with state, tribal and local laws that cover the lands on which we work.

Part 601 – National Cultural Resources Procedures

Subpart B – Applications of NRCS Assistance to Undertakings with the Potential to Affect NRHP-Eligible Cultural Resources

601.10 - General Policy Summary

601.11 - 29 - Reserved

601-B.1

Part 601 - National Cultural Resources Procedures

Subpart B - Applications of NRCS Assistance to Undertakings with the Potential to Affect NRHP-Eligible Cultural Resources

601.10 General Policy Summary

(See GM for complete discussion of NRCS Policy and applications at the State Level and NRCS’s May 31, 2002, Nationwide Programmatic Agreement with the Advisory Council on Historic Preservation and National Conference of State Historic Preservation Officers, appended)

This part applies to all NRCS assistance activities and programs including actions that may affect historic or cultural properties through policies, procedures, or service to the agency's clients.

A. The fundamental elements of NRCS cultural resources policy involve protection and enhancement of cultural resources and historic properties in their original location to the fullest practical extent, and mitigation of adverse effects that cannot be avoided through treatment of the historic or cultural properties. The policies and procedures in this part are designed to encompass a broad range of NRCS activities (including financial and technical assistance and program implementation) either led by NRCS or involving NRCS participation in cooperation with other agencies.

B. While nearly all NRCS activities could be considered undertakings under the definition in 36 CFR 800.16(y), not all activities have the potential to cause effects on historic properties. Examples of such assistance activities may include, but are not limited to providing basic information on soil and water conservation and crop production; providing general or broad based planning assistance across a district; and providing assistance that will not cause a ground disturbance or lead to greater disturbances of previously disturbed areas.

C. The following program activities (i.e. undertakings) generally do not have the potential to cause effects to historic or cultural properties:

(1) National Resources Inventory, water supply forecasts, snow and range surveys, wetlands inventories, and other types and forms of nonintrusive resource data collection.

(2) National Cooperative Soil Survey program activities that involve no ground disturbance or are limited to small-scale field investigations such as small shovel holes, auger holes, probe holes, and/or core holes. Larger-scale field investigations such as soil investigation pits, however, may have the potential to affect historic properties.

(3) Simple purchase of conservation or preservation easements where no subsequent ground-disturbing activities are planned or foreseen.

D. Individual conservation practices may affect cultural resources in a variety of ways, ranging from adverse to beneficial effects. In general, the potential effects of NRCS conservation practices may be categorized according to national standard installation criteria set forth in the National Handbook of Conservation Practices as having the potential, having low potential, or having no potential to affect historic properties.

Criteria found in specific State Conservation Practice Standards may place practices in

601-B.2 different categories according to installation methods within each state. The categories include:

(1) Practices that have the potential to cause effects to historic properties, assuming such historic properties are present, because the potential is high for disturbing the ground.

(2) Practices that have low potential to cause effects to historic properties (assuming such historic properties are present) if the following conditions apply:

(i) Installation of the practice will not exceed the depth, extent, or kind of disturbance caused by previous cultivation(s); or

(ii) The practice installation will not result in ground disturbance to land that has not been previously disturbed.

(3) Practices that do not have the potential to cause effects on historic properties, assuming such historic properties are present. These are primarily management related and have a benign or beneficial effect on cultural resources.

E. Conservation practices should be reviewed by NRCS and the SHPO/THPO and/or Tribes for their potential to affect cultural resources and placed into one of the categories through State Level Agreements and tribal consultation protocols.

F. NRCS also considers resources that are located during cultural resources or other investigations or actions which are of geological, paleontological, or of other scientific importance. Specific information handling these other resources may be found in Subpart G of this document and the NRCS Engineering Manual.

G. Administrative Actions. Certain NRCS administrative actions, such as obtaining (acquiring, constructing, or leasing) facilities for purposes of carrying out agency responsibilities, may have effects on historic properties (including structures and buildings) and are subject to this part.

Part 601 – National Cultural Resources Procedures

Subpart C – Procedures for Complying with Section 106 of the National Historic Preservation Act and Related Authorities

601.20 – Introduction

601.21 – Participants in the Section 106 Process: NRCS’ Consulting Parties

601.22 – Procedures for the Consideration of Cultural Resources in NRCS Undertakings: Identifying, Avoiding, and Determining Impacts to Cultural Resources

601.23 – Assessing the National Register Eligibility of Resources Under Section 106 of the National Historic Preservation Act: Procedures for Evaluating Cultural Resources for Eligibility for the National Register of Historic Places

601.24 – Assessing the Historic or Cultural Importance of Resources in Legislation other than the National Historic Preservation Act

601.25 – Procedures for Assessment and Resolution of Adverse Effects to Historic Properties

601.26 – Failure to Resolve Adverse Effects

601.27 – Procedures for the Withdrawal of Assistance

601.28 – Procedures for the Consideration of Cultural Resources During Emergency Work

601.29 – Procedures for Construction Discoveries

601-C.1

Part 601 - National Cultural Resources Procedures

Subpart C - Procedures for Complying with Section 106 of the National Historic Preservation Act and Related Authorities

601.20 Introduction

A. Cultural resources take many forms and may require specific treatment by NRCS based on:

(1) The resource type(s);

(2) The location of the resource(s);

(3) The type of significance; and

(4) The law (or laws) which protect resources. For example, a resource may be classified as a material cultural resource where the physical remains such as an archeological site or historic building are important. Alternatively, a resource may be classified as a sacred site or traditional cultural place when the actions performed at this location are more important than the physical remains. The location of the resource may change the treatment, depending on whether the land is in public or private ownership and, if public, whether or not it is Federal, State, or tribally owned land. Finally, legislation affects how a resource is treated. The major authorities include the National Historic Preservation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, Executive Orders on Consultation with American Indian Tribes, State counterparts to these regulations, and individual state mortuary statutes.

B. While all of these factors have the potential to make the cultural resources procedures quite complicated, the organization of the sections under Subpart C is designed to minimize these difficulties. These sections guide you through the general process to identify, avoid, and determine impacts to most cultural resources, regardless of the kind of resource or ownership.

C. A very important and special case may occur when cultural resources are discovered during implementation of an NRCS activity. In all such situations, NRCS must anticipate and develop a plan for the discovery of undocumented and/or unanticipated resources.

These discovery plans stipulate the procedures to follow when such resources are found.

Such plans may be general in nature and these will be stipulated in the state-level and tribal agreements between NRCS and the SHPO/THPO. More specific plans for grouped or complex undertakings are usually written as stand-alone documents. Specific information on developing plans can be found below in Subpart C.

D. While the processes of identification are relatively similar, the process of assessing the importance of a particular resource varies according to the factors discussed.

Consequently, the assessment procedures have been broken into two sections of Subpart C. One section focuses on Section 106 of NHPA and gives the procedures to determine eligibility to the National Register of Historic Places. The majority of cultural resources potentially affected by NRCS assistance are in this category. The other section provides information on assessing the National Register eligibility of resources potentially affected by the provisions of other legislation.

601-C.2

601.21 Participants in the Section 106 Process: NRCS’ Consulting Parties

Sec. 800.2 of 36 CFR 800 defines the participants in the Section 106 process to include the agency official, the Advisory Council on Historic Preservation and other consulting parties (State Historic Preservation Officer, Tribal Historic Preservation Officer, American Indian tribes and Native Hawaiian Organizations, representatives of local government, applicants, other participants, the public).

A. Agency Official (NRCS State Conservationist). It is the statutory obligation of the Federal agency to fulfill the requirements of Section 106 and to ensure that an Agency Official with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance in accordance with Subpart B of this part. The Agency Official has approval authority for the undertaking and can commit the Federal agency to take appropriate action for a specific undertaking as a result of Section 106 compliance.

B. For the purposes of Subpart C of this part, the Agency Official has the authority to commit the Federal agency to any obligation it may assume in the implementation of a program alternative (i.e. NRCS’ nationwide Programmatic Agreement). In NRCS, the Agency Official is generally the State Conservationist. NRCS DOES NOT have the authority to delegate the Agency Official responsibility to any other party (i.e. State, local, or tribal government official—at present, only the U.S. Housing and Urban Development agency has such authority under the NHPA). It is the responsibility of the agency office to ensure that all activities recognize the following:

(1) Professional standards. Section 112(a)(1)(A) of the NHPA requires each Federal agency responsible for the protection of historic resources, including archeological resources, to ensure that all actions taken by employees or contractors of the agency shall meet professional standards under guidelines developed by the Secretary of the Interior.

(2) Lead Federal agency designation. If more than one Federal agency is involved in an undertaking, some or all the agencies may designate a lead Federal agency, which shall identify the appropriate official to serve as the Agency Official (in NRCS, the State Conservationist) who shall act on their behalf, fulfilling their collective responsibilities under section 106. Those Federal agencies that do not designate a lead Federal agency remain individually responsible for their compliance with Section 106.

(3) Limits on use of contractors. Consistent with applicable conflict of interest and procurement laws and regulations, the State Conservationist (Agency Official) may use the services of applicants, consultants, or designees to prepare information, analyses and recommendations under this part. The State Conservationist (Agency Official) remains legally responsible for all required findings, determinations and decisions. If a document or study is prepared by a non-Federal party, the Agency Official is responsible for ensuring that its content meets applicable standards and guidelines.

(4) The nature and scope of consultation. The State Conservationist, as Agency Official, shall involve the consulting parties in findings and determinations made during the Section 106 process. The State Conservationist should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act and agency-specific legislation.

601-C.3

The Council encourages the State Conservationist as Agency Official to use to the extent possible existing agency procedures and mechanisms to fulfill the consultation requirements of this part.

C. Advisory Council on Historic Preservation. The Council issues regulations to implement Section 106, provides guidance and advice on the application of the procedures in this part, and generally oversees the operation of the Section 106 process.

The Council also consults with and comments to Agency Officials (State Conservationists) on individual undertakings and programs that affect historic properties.

(1) Council entry into the Section 106 process. When the Council determines that its involvement is necessary to ensure that the purposes of Section 106and the National Historic Preservation Act (NHPA) are met, the Council may enter the Section 106 process. Criteria guiding Council decisions to enter the Section 106 process are found in an appendix to 36 CRF Part 800. The Council will document that the criteria have been met and notify the parties to the Section 106 process as required by this part.

(2) Council assistance. Participants in the Section 106 process may seek advice, guidance and assistance from the Council on the application of this part to specific undertakings, including the resolution of disagreements, whether or not the Council is formally involved in the review of the undertaking. If questions arise regarding the conduct of the Section 106 process, participants are encouraged to obtain the Council's advice on completing the process.

D. Consulting Parties. The following parties have consultative roles in the Section 106 process.

(1) State Historic Preservation Officer.

(i) The State Historic Preservation Officer (SHPO) reflects the interests of the

State and its citizens in the preservation of their cultural heritage. In accordance with section 101(b)(3) of the NHPA, the SHPO advises and assists Federal agencies in carrying out their Section 106 responsibilities.

(ii) If an Indian tribe has assumed the functions of the SHPO in the Section 106 process for undertakings on tribal lands, the SHPO shall participate as a consulting party if the undertaking takes place on tribal lands but affects historic properties off tribal lands, if requested in accordance with Sec.

800.3(c)(1), or if the Indian tribe agrees to include the SHPO pursuant to Sec.

800.3(f)(3).

(2) Tribal Historic Preservation Officer.

(i) The Tribal Historic Preservation Officer (THPO) appointed or designated in accordance with the Act is the official representative of an Indian tribe for the purposes of section 106. If an Indian tribe has assumed the responsibilities of the SHPO for Section 106 on tribal lands under section 101(d)(2) of the Act, the Agency Official shall consult with the THPO in lieu of the SHPO regarding undertakings occurring on or affecting historic properties on tribal lands.

(ii) If an Indian tribe has not assumed the responsibilities of the SHPO for Section 106on tribal lands under section 101(d)(2) of the Act, the Agency Official shall consult with a representative designated by such Indian tribe in addition to the SHPO regarding undertakings occurring on or affecting historic properties on its tribal lands.

(3) Indian tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the Act requires the Agency Official to consult with any Indian tribe or Native

601-C.4

Hawaiian organization that attaches traditional religious and cultural significance to historic properties that may be affected by an undertaking. Such Indian tribe or Native Hawaiian organization shall be a consulting party.

(i) The Agency Official shall ensure that consultation in the Section 106 process provides the Indian tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects. It is the responsibility of the Agency Official to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the Section 106 process.

Consultation should commence early in the planning process, in order to identify and discuss relevant preservation issues and resolve concerns about the confidentiality of information on historic properties.

(ii) The Federal government has a unique legal relationship with Indian tribes set forth in the Constitution of the United States, treaties, statutes, and court decisions. Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. Nothing in 36 CRR Part 800 is intended to alter, amend, repeal, interpret or modify tribal sovereignty, any treaty rights, or other rights of an Indian tribe, or to preempt, modify or limit the exercise of any such rights.

(iii) Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal government and Indian tribes.

The Agency Official shall consult with representatives designated or identified by the tribal government or the governing body of a Native Hawaiian organization. Consultation with Indian tribes and Native Hawaiian organizations should be conducted in a manner sensitive to the concerns and needs of the Indian tribe or Native Hawaiian organization.

(iv) When Indian tribes and Native Hawaiian organizations attach traditional religious and cultural significance to historic properties off tribal lands, section 101(d)(6)(B) of the Act requires Federal agencies to consult with such Indian tribes and Native Hawaiian organizations in the Section 106 process. Federal agencies should be aware that frequently historic properties of traditional religious and cultural significance are located off tribal lands and should consider that when complying with the procedures in this part.

(v) An Indian tribe or a Native Hawaiian organization may enter into an agreement with an Agency Official that specifies how they will carry out responsibilities under this part, including concerns over the confidentiality of information. An agreement may cover all aspects of tribal participation in the Section 106 process, provided that no modification may be made in the roles of other parties to the Section 106 process without their consent. An agreement may grant the Indian tribe or Native Hawaiian organization additional rights to participate or concur in agency decisions in the Section 106 process beyond those specified in subpart B of this part. The Agency Official shall provide a copy of any such agreement to the Council and the appropriate SHPOs.

(vi) An Indian tribe that has not assumed the responsibilities of the SHPO for Section 106 on tribal lands under section 101(d)(2) of the NHPA may notify the Agency Official in writing that it is waiving its rights under Sec.

800.6(c)(1) to execute a Memorandum of Agreement.

601-C.5

(4) Representatives of local governments. A representative of a local government with jurisdiction over the area in which the effects of an undertaking may occur is entitled to participate as a consulting party. Under other provisions of Federal law, the local government may be authorized to act as the Agency Official for purposes of section 106.

(5) Applicants for federal assistance, permits, licenses and other approvals. An applicant for federal assistance or for a federal permit, license or other approval is entitled to participate as a consulting party as defined in this part. The Agency Official may authorize an applicant to initiate consultation with the SHPO/THPO and others, but remains legally responsible for all findings and determinations charged to the Agency Official. The Agency Official shall notify the SHPO/THPO and other consulting parties when an applicant is so authorized.

(6) Additional consulting parties. Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties.

E. The public’s involvement.

(1) Nature of involvement. Public involvement (seeking public comments) is NOT a substitute for required consultation. The views of the public are essential to informed federal decision-making in the Section 106 process. The State Conservationist, as Agency Official, shall seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties, the likely interest of the public in the effects on historic properties, confidentiality concerns of private individuals and businesses, and the relationship of the federal involvement to the undertaking.

(2) Providing notice and information. The State Conservationist, as Agency Official, must, except where appropriate to protect confidentiality concerns of affected parties (see Subpart E section on FOIA Requests and Privacy Requirements), provide the public with information about an undertaking and its effects on historic properties and seek public comment and input. Members of the public may also provide views on their own initiative for the Agency Official to consider in decision-making.

(3) Use of agency procedures. The State Conservationist may use NRCS’ procedures for public involvement under the National Environmental Policy Act (NEPA) or other program requirements in lieu of the NHPA public involvement requirements, if they provide adequate opportunities for public involvement consistent with the intent of the NHPA and the ACHP’s regulations.

F. Summary of NRCS’ Responsibilities to Consulting Parties

(1) The NRCS is required to provide all consulting parties with the opportunity to consult (not just comment) on a proposed undertaking throughout the planning and development of an action or program. NRCS should present the consulting parties with sufficient information to permit them to decide if they have concerns or recommendations; the consulting parties may ask for more information if such program/project data are not provided.

(2) Consultation is not a simple request for information on known resources within the projects’ area of potential effect—it is an exchange of ideas. Therefore, NRCS should gather as much information as possible prior to initiating consultation with the various parties, including the mandatory consulting parties—SHPO, THPO, appropriate tribes and local officials. Once adequate

601-C.6 documentation is provided, the SHPO/THPO are generally provided 30 days for their review (unless modified in a local state-level agreement or tribal consultation agreement).

(3) Each consulting party has the right to disagree with an NRCS position or finding within that 30-day review period. If the agency cannot resolve the disagreement, it must seek the Council's opinion. This opinion, while not binding, should influence NRCS’ final decision.

(4) If the consulting party is an Indian tribe or Native Hawaiian organization that attaches traditional religious and cultural significance to a historic property, the ACHP urges the agency to “seek" the concurrence of that party. This means that the NRCS is encouraged, but not legally required, to obtain such concurrence. If the tribe or organization does not concur and disagrees with the proposed finding, either NRCS or the tribe or organization may refer the matter directly to the Council for an opinion.

601.22 Procedures for the Consideration of Cultural Resources in NRCS Undertakings: Identifying, Avoiding, and Determining Impacts to Cultural Resources

The following steps are required to identify, avoid, and determine impacts to cultural resources.

A. Determine if the planned action (i.e. undertaking) has the potential to cause effects on historic properties, assuming such historic properties exist. Examine each NRCS activity or practice to decide whether the action could cause a change in the characteristics of a cultural resource. If the action is determined not to be an undertaking with the potential to affect a cultural resource, document the decision and proceed with the action. If the determination is that the planned action has the potential to affect a cultural resource, follow the process below.

B. Determine the level and responsibility for cultural resource investigations.

(1) Conservation Planning (as defined in the National Planning Procedures Handbook). If authority for a conservation plan (including planning and implementation) is at the field office level, the Cultural Resource Review and Field Inspection may be conducted by an NRCS employee who has satisfactorily completed the National Cultural Resources Training Program, and provided that:

(i) The planned activity is generally limited to lands owned, controlled, or managed by three or fewer cooperators, and

(ii) The Field Office personnel have determined that no extenuating circumstances exist, such as particularly dense, unusual, or deeply buried cultural resources within the proposed Area of Potential Effect (APE).

(2) If a proposed activity with potential to affect cultural resources, or the scope of planning for a series of such activities involves more than three cooperators (this will normally include activities such as Land Treatment Watersheds (LTWs) or Hydrologic Unit Areas (HUAs)), or extenuating circumstances, such as those described, or the proposed activity or the scope appears to be of a size or complexity that warrants additional assistance, the Field Office shall contact the CRC/CRS. The CRC /CRS shall review the proposed action and make a recommendation addressing the amount and level of cultural resource assistance needed to meet the specifications contained in this part.

601-C.7

(3) If authority for a conservation plan (including planning and implementation) is above the field office level, the required cultural resource activities beyond the initial cultural resources review will be conducted by a Cultural Resources Specialist.

(4) Project Planning. All project plans (as defined in the National Planning Procedures Handbook) will require cultural resources activities beyond the initial cultural resources review to be conducted by a Cultural Resources Specialist.

(5) Special Cases and Studies.

(i) Special cases. Land Treatment Watersheds (LTWs) and Hydrologic Unit

Areas (HUAs), which are initiated as projects during planning but installed at the Field Office with accelerated technical assistance, require a more practical approach to cultural resources inventories and compliance. While Federal funds are involved, their purpose is narrowly defined (e.g., water quality improvement) and instead of installing several large engineering practices (e.g., dams) on public land, many smaller structures are installed (typically less than 5 acres) or management practices are implemented on private land to accomplish the conservation objectives.

(ii) In these special cases, the planning process determines the general number and type of installations that are required to achieve the stated goal(s). These are grouped into evaluation units or treatment areas and are not tied initially to precise geographic locations because their placement is determined by the landowner and dependent upon the producer’s cooperation. The selected practices may also be installed up to a period of 10 years. During this time, some landowners may decide not to participate in the program, while others may opt for alternatives such as land use conversion. Due to this planning and installation sequence, NRCS can produce general plans but is unable to tie these plans to exact Areas of Potential Effect (APEs) until contracts or commitments for implementation are made by the land owner.

(iii) Consequently, the following identification process for cultural resources will be used for these special cases. A general cultural resources review will be conducted for the entire planning area during the planning phase. The review will determine the types of cultural resources found in the project area and some estimation of the resource numbers that may be impacted by the conservation practices selected for individual treatment areas. The results of this review should be included in the plan document with recommendations on how further identification and evaluation of cultural resources should be accomplished. These recommendations will be formulated with the consensus of a Cultural Resources Specialist. The use of GIS-based predictive modeling techniques is strongly recommended in formulating the plan recommendations. Exact cultural resources locations should be filed separately for future reference prior to practice design and installation.

(iv) When conservation contracts/land treatment contracts (LTCs) or commitments are executed, cultural resources field investigations will be performed according to the work plan recommendations as far in advance of installation as possible. For convenience and efficiency, similar treatment areas or evaluation units should be grouped for field investigation by a Cultural Resources Specialist who will provide both identification and evaluations of significance. This will provide planners with information on the number of historic properties affected early enough to develop conservation alternatives or acceptable mitigation plans with the cooperator(s).

601-C.8

(v) Special studies. For special studies such as River Basin Studies and Natural Resource Planning, the study report or plan will include, at minimum:

• A general overview of cultural resources in the area, and

• A statement that, if elements of the report or plan are implemented, the lead Federal agency must carry out the requirements of Section 106 of the NHPA of 1966, as amended, prior to implementation. If the study report or plan identifies specific locations where there is a high probability that practices or measures will have the potential to affect cultural resources, cultural resources investigations for the study will follow the steps in this section.

C. Identify cultural resources and historic properties (including traditional cultural properties) within the area of potential effect (APE).

(1) Determine the Area of Potential Effect (APE). The APE is the geographic area or areas within which Federal agency planned actions or activities (undertakings) may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The APE is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertakings. The APE should include all borrow, fill or temporary storage areas, access roads and any other lands that would be directly or indirectly affected by the proposed undertaking. In some cases, with very large or elevated projects, the APE may include visual effects.

(2) Conduct a cultural resources review or background study to determine if cultural resources are known in the APE. The review will consist, at a minimum, of checking or contacting the following sources and documenting the results:

(i) The National Register of Historic Places for listed and eligible properties, and any State and local registers of cultural properties.

(ii) Official state and regional site files and databases. Your CRC/CRS will instruct you in the proper procedure for accessing these files. The completeness, format, and accuracy of these databases differ by state. The actual procedure may be outlined or specifically addressed in state and tribal agreements.

(iii) The landowner, participant, or sponsor. These individuals may have a great deal of information about historic or prehistoric resources on a tract or property.

(iv) Cultural resources indicators, environmental indicators, and artifacts.

(v) Information from National Environmental Policy Act (NEPA) scoping meetings and in environmental documents prepared by, or for, Federal and State agencies. The scoping process conducted as a part of NEPA compliance may aid in locating cultural resources and/or knowledgeable cultural resources specialists. It is important to identify non-material cultural resources and/or the individuals who can identify them.

(vi) Sources that identify American Indian tribes or Native Hawaiian groups who currently live in or use the area, those who lived there in the past, and individuals knowledgeable about the cultural properties of the tribes or groups. Critical to locating and in determining the value of cultural resources is finding individuals who understand the traditions and customs of indigenous groups. These include professional social scientists, traditional religious leaders, and other knowledgeable individuals within a specific group. University departments that have anthropologists, historians, folklorists, or cultural geographers on staff are good sources of information

601-C.9 for identifying cultural groups in an area and may be able to provide the names of knowledgeable individuals within the groups.

(vii) Tribes may have a designated Tribal Historic Preservation Officer (THPO).

The THPO is appointed by the tribe's chief governing authority or designated by a tribal ordinance or preservation program, is approved under provisions of the NHPA by the Secretary of Interior, and has assumed the responsibilities of the SHPO for the purposes of Section 106 compliance on tribal lands. Some tribal governments may not have a THPO, but may have a contact person to provide information about issues of interest to the tribe.

(viii) It is important to identify non-archaeological cultural resources and/or the individuals who can identify them. Additional efforts may be necessary in expanding public and scoping meetings to address concerns of Native American and other concerned ethnic groups and may aid in identifying cultural resources of concern to the groups.

(ix) Other sources can provide information to help build a background for individual planning checks. NRCS Field Office employees conducting reviews are not required to check these sources for each conservation plan, but collecting information from these sources into a file can save time and avoid discovery situations. These types of sources must be checked in reviews conducted by Cultural Resources Specialists.

• Museums

• Local historical or archaeological societies

• Libraries

• Local universities

(3) Examine the results of the Cultural Resources Review. Is there sufficient information to know what types of cultural resources are likely to occur in the planning area, what the distribution of the resources are or may be, and whether cultural resources might be affected by carrying out the planned action? Based on these or similar questions, it can be determined whether an action that is initiated at the Field Office level should continue to be handled at the Field Office, or should be referred to the CRC/CRS. If the review is either initiated by the CRC/CRS or is referred to the CRC/CRS by a Field Office, the CRC, working with the state CRS, and with the SHPO as specified in state level agreements and tribal consultation protocols, will recommend measures to complete the remaining investigation for the action. This will include determining if the complexity of probable or known cultural resources in the area of potential effect is great enough to warrant field inspection by a CRS.

(4) Conduct a field inspection of the APE to find previously known cultural resources and to locate new cultural resources.

(i) Define the boundaries and continuity of a site by the extent of cultural material observed and landscape features.

(ii) Define any boundaries of intangible cultural resources, of traditional cultural properties, or of an area that must be avoided because it is known to contain resources that have specific spatial location(s) not provided for security reasons. Requests by concerned parties that NRCS and others stay out of culturally sensitive areas may preclude field checks of those areas for material cultural resources. The participant should be informed that the agency may not be able to offer assistance until compliance requirements can be met in such culturally sensitive areas.

601-C.10

(iii) Documentation of compliance and the reporting of cultural resources will follow the policy in 401.41 and the specifics of each state level agreement.

The absence of cultural resources must also be documented using procedures contained in that same agreement, since this will prevent repetition of the same compliance work.

(iv) In all cases, NRCS will provide documentation to the landowner regarding the compliance process, resources located, and those considered significant.

D. Determine whether the proposed action (i.e. undertaking) will affect a cultural resource in the APE. Whenever possible, NRCS will avoid effects to the resource by either moving the practice to another area; changing the work limits; changing to an acceptable alternative practice or measure; or modifying the practice design. NRCS will consider and document the effect of planned actions on material and other cultural resources identified as follows:

(1) If the proposed action will not affect the located cultural resource(s) and the authority or approval is at the Field Office then the office will:

(i) Document the location of the resource and the fact that it can be avoided and provide this information to both the SHPO and landowner;

(ii) Send the completed site form to the official state site file, with a copy to the

SHPO if that office is not the repository; and

(iii) Allow 15 days (or less if so stipulated in state level agreement) for SHPO comment. If the SHPO concurs with NRCS or if no comment is received within the allotted time period, then continue with the assistance.

(2) If the proposed action will not affect the located cultural resource(s) and the authority or approval is above the field office level, then the Cultural Resources Specialist will follow normal documentation and consultation procedures as specified in 36 CFR 800, approved state level agreements and tribal consultation protocols, and related Federal and state guidelines. Upon completion NRCS may continue with the assistance.

(3) If the undertaking will affect the located cultural resource(s) and the authority or approval is at any level, then NRCS will follow the procedures defined in section below.

601.23 Assessing the National Register Eligibility of Resources Under Section 106 of the National Historic Preservation Act: Procedures for Evaluating Cultural Resources for Eligibility for the National Register of Historic Places

A. The process of evaluating the importance of any object or place is based on a comparison with a standard or with a similar item or concept, or both, by examining the role of the item within a specific context. This section and the one following describe the formal and informal processes NRCS will follow to evaluate the cultural resources which have been identified and which will be directly or indirectly affected by a proposed action. The CRC is responsible for coordinating the evaluation process. CRS’s will evaluate cultural resources and assist in reviewing determinations of eligibility made by contractors. This first section describes the evaluation procedures for determining whether a tangible cultural resource is eligible for the National Register of Historic Places. This section covers the largest number of resources that NRCS will encounter and is thus separated out for clarity. The next section describes the identification and evaluation process for resources that are important because of other legislation or

601-C.11 regulations. All field personnel and state personnel with field responsibilities should be familiar with the characteristics of all resource types.

B. Resources are evaluated according to the National Register of Historic Places criteria.

Cultural resources which have been identified by a qualified CRS or NRCS employees who have completed the NRCS National Cultural Resources Training Program will be evaluated by a CRS following the formal process:

(1) Material cultural resources such as objects, sites, buildings, structures, and districts which have been identified will be placed within the appropriate historic context(s) and compared against the National Register of Historic Places criteria (36 CFR 60.4), to determine whether the resource is eligible for listing in the National Register. The specialist will provide a written rationale for the decision on each cultural resource. Historic contexts to be used in the evaluation process should be prepared by each State Historic Preservation Office as a part of the State Historic Preservation Plan. While it is always important to obtain sufficient information during the identification process to help place a resource in its historic setting, it is of particular importance when a state has not prepared historic contexts National Register Bulletin No.15 provides guidance. How evaluations will be conducted in the absence of a state plan can be an item in the state agreement with the SHPO.

• When little comparative information has been collected and/or NRCS and the

SHPO/THPO disagree on the National Register eligibility of the resource, NRCS should identify and consult with individuals who are especially…