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A bulk transmission project must comply with [[National Historic Preservation Act | Section 106]] of the [[National Historic Preservation Act]] (NHPA). Section 106 of the NHPA requires federal agencies to take into account the effects of their undertakings on historic properties and afford the [[Advisory Council on Historic Preservation]] (ACHP) an opportunity to comment. An energy project that requires a federal license, permit, or approval, or that utilizes federal financial assistance, must comply with Section 106 and the implementing regulations in [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800 et seq.]] Typically, a federal agency’s responsibility is limited to consultation.
Direct impacts to cultural resources could occur from construction activities, and indirect impacts might be caused by soil erosion and increased accessibility to possible site locations. Potential impacts include:
*Complete destruction of the resource if present in areas undergoing surface disturbance or excavation;
*Degradation or destruction of near-surface cultural resources on- and off-site resulting from topographic or hydrological pattern changes, or from soil movement (removal, erosion, sedimentation);
*Unauthorized removal of artifacts or vandalism to the site as a result of increases in human access to previously inaccessible area, if significant cultural resources are present; and
*Visual impacts resulting from vegetation clearing, increases in dust, and the presence of large-scale equipment, machinery, and vehicles (if the affected cultural resources have an associated landscape or other visual component that contributes to their significance, such as scared landscape or historic trail).
[[Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website]].
Any project that includes a form of surface disturbance has the potential to damage items of historic or cultural value. In order to avoid any inadvertent disturbances of cultural materials, the federal agency should consult with the following parties, as applicable:
#The State Historic Preservation Officer (SHPO)
#The Tribal Historic Preservation Officer (THPO)
#The local tribe's designated representative
#Any Indian tribe attaching religious and cultural significance to a historic property that may be affected by the undertaking
#The project proponent
#[[Advisory Council on Historic Preservation]]
Oftentimes stakeholders are successful in negotiating a memorandum of agreement dictating protocol for managing disturbance of cultural materials. Typically, the negotiating process is accomplished as part of the [[National Environmental Policy Act]] review process. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/9 (1)|Environmental Review Overview: 9 (1)]]</span>
Overview of the permit or section being discussed.
==11.1 – Is the Project a Federal Undertaking?==
Section 106 applies when two thresholds are met: (1) there is a federal undertaking, and (2) that action has the potential to affect properties listed in or eligible for listing in the National Register of Historic Places.
Section 106 requires each federal agency to identify and assess the effects of its actions on historic resources. The responsible federal agency must consult with appropriate state and local officials, Indian tribes, applicants for federal assistance, and members of the public. The federal agency must then consider the consulted parties’ views and concerns about historic preservation issues when making final project decisions.
Effects are resolved by mutual agreement, usually among the affected state's SHPO or the THPO, the federal agency, and any other involved parties. The ACHP may participate in controversial or precedent-setting situations.
The federal agency must determine whether the proposed federal action is a "Federal undertaking," defined by [[Title 36 CFR 800 Protection of Historic Properties|36 CFR 800.16(y)]] as "…a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval." If the federal project is a “Federal undertaking,” the agency must determine whether it has the potential to cause effects on historic properties. See [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.3(a)]].
The ACHP’s regulations at [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800 et seq.]] govern Section 106 compliance. Generally, undertaking agencies must comply with the process delineated by [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.3-800.6]]. However, there are two circumstances under which the process may be altered. First, [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.8]] allows agencies to coordinate the Section 106 NHPA and [[National Environmental Policy Act]] (NEPA) review processes, and in some cases to use the NEPA review to comply with Section 106 as an alternative to the process set out in [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.3-800.6]]. See 11.4, below. Second, [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.14]] allows federal agencies to develop alternate procedures and substitute them for the procedures outlined by [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.3-800.6]]. In many cases, a federal agency and the ACHP will negotiate a programmatic agreement. See [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.14(b)]]. Federal agencies may also negotiate specific protocols for implementing [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.3-800.6]] with specific SHPOs. For a list of programmatic agreements between the ACHP and federal agencies, see the [[ACHP - Nationwide Programmatic Agreements | Nationwide Programmatic Agreements List]] on the ACHP’s website.
==11.2 – Initiate State Cultural Considerations==
The developer should consider state laws and regulations when a project could impact state cultural or historical artifacts.
Currently, the RAPID Toolkit does not have state specific content regarding state cultural considerations for transmission development.
==11.3 – Is There Potential for the Proposed Project To Cause Effects on Historic Properties?==
If the proposed project has the potential to cause effects on historic properties, the developer should consider a number of federal statutes that may apply. See [[Advisory Council on Historic Preservation]] [[ACHP - Relationship of Section 106 to Other Laws | Relationship of Section 106 to Other Laws Webpage]].
Federal agencies have responsibilities under a number of laws that may influence the way they carry out their [[National Historic Preservation Act|NHPA]] section 106 duties. [[Title 36 CFR 800 Protection of Historic Properties|Section 800.3(b)]] of [[Advisory Council on Historic Preservation|ACHP's]] regulations specifically encourages coordination of section 106 responsibilities "with any reviews required under other authorities such as the [[National Environmental Policy Act|NEPA]], the [[Native American Graves Protection Act|Native American Graves Protection and Repatriation Act]], the American Indian Religious Freedom Act, the Archaeological Resources Protection Act, and agency-specific legislation."
However, compliance with one or more of these other statutes does not substitute for compliance with ACHP's regulations, [[Title 36 CFR 800 Protection of Historic Properties|36 CFR Part 800]], unless ACHP explicitly agrees that it does through execution of a [[ACHP - Nationwide Programmatic Agreements | Programmatic Agreement]] or approval of alternate procedures.
'''National Environmental Policy Act'''
Under [[National Environmental Policy Act|NEPA]], agencies must assess the environmental impacts of proposed federal actions, including impacts on cultural and historic resources. To an extent, [[National Environmental Policy Act|NEPA]] addresses some of the same concerns as [[National Historic Preservation Act|NHPA]]. For instance, both statutes require agencies to identify irreversible effects.
Agencies may coordinate studies and documentation prepared under Section 106 with those prepared for NEPA. The [[Advisory Council on Historic Preservation|ACHP's]] regulations provide guidance on how the NEPA and Section 106 processes can be coordinated ([[Title 36 CFR 800 Protection of Historic Properties|Section 800.8(a)]]). They also set forth the manner in which a Federal agency can use the NEPA process and documentation to comply with Section 106 ([[Title 36 CFR 800 Protection of Historic Properties|Section 800.8(c)]]).
'''Archaeological and Historic Preservation Act of 1974'''
If a project will affect historic properties that have archaeological value, the [[Archaeological and Historic Preservation Act]] (AHPA) may impose additional requirements on an agency. Notifying the Department of the Interior that you are doing something under AHPA does not constitute compliance with Section 106.
'''Archaeological Resources Protection Act of 1979 (ARPA)'''
If Federal or Indian lands are involved, the [[Archaeological Resources Protection Act]] (ARPA) may impose additional requirements on an agency. The [[Archaeological Resources Protection Act|ARPA]]:
* Prohibits unauthorized excavation on Federal and Indian lands;
* Establishes standards for permissible excavation;
* Prescribes civil and criminal penalties;
* Requires agencies to identify archaeological sites; and
* Encourages cooperation between Federal agencies and private individuals.
Acquiring an ARPA permit does not constitute compliance with Section 106.
'''American Indian Religious Freedom Act of 1978 (AIRFA)'''
The [[American Indian Religious Freedom Act]] (AIRFA) affirms the right of Native Americans to have access to their sacred places. If a place of religious importance to American Indians may be affected by an undertaking, AIRFA promotes consultation with Indian religious practitioners, which may be coordinated with Section 106 consultation. Amendments to Section 101 of NHPA in 1992 strengthened the interface between AIRFA and NHPA by clarifying that:
*Properties of traditional religious and cultural importance to an Indian tribe; or *Native Hawaiian organization may be determined to be eligible for inclusion on the National Register.
In carrying out its responsibilities under Section 106, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph (A). [[Title 16 USC 470a Historic Preservation Program|16 U.S.C. 470a (a)(6)(A) and (B)]].
'''[[Native American Graves Protection Act|Native American Graves Protection And Repatriation Act of 1990 (NAGPRA)]]'''
For proposed projects on Federal lands, the [[Native American Graves Protection Act|Native American Graves Protection And Repatriation Act of 1990 (NAGPRA)]] requires consultation with "appropriate" Indian tribes (including Alaska Native villages) or Native Hawaiian organizations prior to the intentional excavation, or removal after inadvertent discovery, of several kinds of cultural items, including human remains and objects of cultural patrimony. For proposed projects on Native American or Native Hawaiian lands, which are defined in the statute, NAGPRA requires the consent of the Indian tribe or Native Hawaiian organization before the removal of cultural items. The law also provides for the repatriation of such items from Federal agencies and federally assisted museums and other repositories.
NAGPRA defines Native American cultural items as:
* Human remains,
* Associated funerary objects,
* Unassociated funerary objects,
* Sacred objects, and
* Cultural patrimony.
In brief, NAGPRA requires agencies to:
*Inventory Native American cultural items,
*Repatriate Native American cultural items, and
*Consult with Native American groups about permits to excavate on Federal or tribal lands.
The 1992 amendments to NHPA strengthened NAGPRA by encouraging "protection of Native American cultural items...and of properties of religious or cultural importance to Indian tribes, Native Hawaiians, or other Native American groups" [[National Historic Preservation Act|Section 112(b)(3)]] and by stipulating that a Federal "...agency's procedures for compliance with Section 106...provide for the disposition of Native American cultural items from Federal or tribal land in a manner consistent with Section 3(c) of [[Native American Graves Protection Act|Native American Graves Protection and Repatriation Act]]...." [[National Historic Preservation Act|Section 110(a)(2)(E)(iii)]].
==11.4 – Initiate National Historic Preservation Act Section 106 - Cultural Resource Survey==
As stated above, Section 106 of the NHPA requires federal agencies to take into account the effects of their undertakings on historic properties. A historic property is “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.” See [[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.16(l)]].
[[Title 36 CFR 800 Protection of Historic Properties | 36 CFR 800.4]] requires a federal agency considering an undertaking to identify historic properties within the area of potential effect (APE). This may include cultural resource surveys in some circumstances.
'''Bureau of Land Management Resource Survey'''
The Bureau of Land Management (BLM) may conduct cultural resource surveys under certain circumstances. Cultural resources or cultural properties are defined by the BLM as: a definite location of human activity, occupation, or use, normally greater than 50 years of age, identifiable through field inventory, historical documentation, or oral evidence. The term includes archaeological, historic, or architectural sites, structures, places, or sites or places with important public and scientific uses, and may include definite locations (sites or places) of traditional cultural or religious importance to specified social and/or cultural groups (cf. “traditional cultural property”). Cultural resources are concrete, material places and things that are located, classified, ranked, and managed through the system of identifying, protecting, and utilizing for public benefit described in laws, regulations, and the BLM Manuals ([[BLM Manual 8110 - Identifying and Evaluating Cultural Resources | Section 8110]] - Identifying and Evaluating Cultural Resources, [[BLM Manual 8120 - Tribal Consultation Under Cultural Resources | Section 8120]] - Tribal Consultation Under Cultural Resources, and [[BLM Manual 8140 - Protecting Cultural Resources | Section 8140]] - Protecting Cultural Resources). For more information, see:
<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/11-FD-a|National Historic Preservation Act Section 106 - Resource Survey: <br>11-FD-a]]</span>
==11.5 to 11.6 – Initiate National Historic Preservation Act Section 106 - Tribal Consultation==
Federal agencies are charged with the responsibility to meaningfully consult with tribal organizations. See [[Presidential Memorandum on Tribal Consultation |Presidential Memorandum on Tribal Consultation]]. FERC requires a tribal consultation to take place in order to determine if the bulk transmission project will impact Native American or Native Hawai’ian interests. For more information, see:
<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/11-FD-b|National Historic Preservation Act Section 106-Tribal Consultation: <br>11-FD-b]]</span>
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Enter agency or multiple agencies, separated by semi-colons.
[[DOE - Guide to Tribal Clean Energy Development webpage |U.S. Department of Energy - Guide to Tribal Energy Development]]; [[DOI - Tribal Consultation Policy webpage | U.S. Department of Interior -
Tribal Consultation Policy]]; [[BLM Manual 8110 - Identifying and Evaluating Cultural Resources | Bureau of Land Management - Section 8110 Manual Identifying and Evaluating Cultural Resources]]; [[BLM Manual 8120 - Tribal Consultation Under Cultural Resources | Bureau of Land Management - Section 8120 Manual Tribal Consultation Under Cultural Resources]];
[[BLM Manual 8140 - Protecting Cultural Resources | Bureau of Land Management - Section 8140 Manual Protecting Cultural Resources]]; [[BLM - Information on Cultural Resource Use Permits webpage | Bureau of Land Management Cultural Resource Use Permit Webpage]]; [[Tribal Energy and Environmental Information Clearinghouse webpage | Tribal Energy and Environmental Energy Clearinghouse Webpage]];
[[ACHP - Section 106 Regulations Flowchart | Advisory Council on Historic Preservation -
Section 106 Regulations Flowchart]]; [[ACHP - Nationwide Programmatic Agreements | Advisory Council on Historic Preservation - List of Programmatic Agreements]];
Enter multiple References, separated by semi-colons. Use standard wiki text for links.
[[National Historic Preservation Act]]; [[Title 36 CFR 800 Protection of Historic Properties]];
[[Native American Graves Protection Act]];[[Archaeological and Historic Preservation Act]];
[[Archaeological Resource Protection Act]];[[American Indian Religious Freedom Act]];
[[Paleontological Resources Preservation Act]]; [[National Environmental Policy Act]];
[[Federal Cave Resources Protection Act]]; [[Title 25 CFR 224 Tribal Energy Resource Agreements Under The Indian Tribal Energy Development and Self Determination Act]];
[[Presidential Memorandum on Tribal Consultation | Presidential Memorandum on Tribal Consultation]];
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Surface ManagerSurface OwnerMineral ManagerMineral OwnerActivityEncroachmentEnvironmentalLocationLand Use PlanGeothermal LeaseHazardous WasteImpactsFacilityFundingManagedPlannedPower PlantTransmissionTransportation
DrillingExplorationGeophysicsLeasingPower Plant DevelopmentWell Abandonment
can be described as
CogenerationSmall Power ProductionIndependent Power ProductionWholesale CustomerFERC ExemptedFERC LicensedUnderground StorageAbove-Ground StorageTemporary Water RequirementPermanent Water RequirementDrinking Water Providing
ActiveNoApplicant Is Lessee
Capacity Exceeds 20 MWCapacity Under 20 MWCapacity Is 50 MWCapacity Exceeds 50 MWCapacity Under 100 MWPUC Certification
Historic PropertiesNative American Historic PropertyNative Hawaiian Historic PropertyNational Register Historic PropertyHistoric Property (Alteration)AirportMigratory BirdsBald Or Golden EagleMarine Mammals Or HabitatFederal Endangered SpeciesFarmland Or LivestockMilitary LandWaters Of The USNavigable WatersWild Or Scenic RiverWetlands By Dregging Or FillingGroundwater By DischargeStorm WaterWater Discharge To WellWater Discharge To LandWater Point Source DischargeWaste Water Associated With Only GeothermalReceived State 401 WQ CertHas Not Received 401 WQ CertAir QualityAir Quality From ConstructionAir Quality From OperationSolid Waste
Line Capacity Under 200 kVLine Capacity Exceeds 50 kVWithin NIETCCAISO GridExempt Per GO 131 D III B 1Not Exempt From CEQAPUC CertificationProject Under GO 131 D II B 2
Assessment CompletedImpact SignificantImpact Likely SignificantAnalysis Impacts AdverseAnalysis Impacts Not AdverseNo Best Interests FindingNo Categorical ExclusionNo Determination Of NEPA AdequacyPrior State AnalysisNo Prior State AnalysisProcess Not Complete For DrillingExtraordinary Circumstances
Interconnection AgreementPre-Application Process
State Highway ROW
Exceeds Max Length Or Load
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