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Hydropower Cultural Resources Overview (11)

Information current as of 2020
A hydropower project developer (developer) should consider the proposed project’s impacts on cultural and historic resources. Federal and state laws protect cultural resources, including artifacts, human remains, historic and prehistoric sites as well as locations of cultural significance from particular impacts. Prior to commencing a project, a developer should assess the potential impacts a project may have on protected cultural and historic resources.


Ground disturbance and subsurface excavation activities during project construction, including the development of associated access roads, parking areas, and transmission lines can lead to damage or destruction of cultural and historic resources. Indirect impacts, such as soil erosion from the project site could result in degradation or destruction of near-surface cultural resources. In addition, adverse potential direct and indirect impacts to cultural and historic resources due to project construction could 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;
  • Unauthorized removal of artifacts or vandalism of the site as a result of increases in human access to previously inaccessible area; 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 (e.g., Indian religious and cultural sites or historic trails).

Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website.

Typically developers must consider the proposed project’s impacts on cultural, archaeological, and other historic resources pursuant to the following federal statutes:

In addition to federal laws and regulations, developers must consider the proposed project’s impacts on cultural, archaeological, and other historic resources under state laws and regulations.



Cultural Resources Overview Process


11.1 to 11.2 – Is the Project a Federal Undertaking that May Affect Historic Properties?

The lead federal agency (lead agency) or a designated federal representative (e.g., developer, consultant or other designee) must take into account the effects that a federal undertaking may have on historic properties through conducting consultations with necessary parties (consulting parties) and providing the Advisory Council on Historic Preservation (Council) a reasonable opportunity to comment on any such undertaking pursuant to Section 106 of the National Historic Preservation Act, 54 U.S.C. §§ 300101-307108 (NHPA). A “federal undertaking” means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency. Federal undertakings include projects that a federal agency carries out, assists, funds, permits, licenses, or approves

If an undertaking may affect historic properties, the lead agency or designated federal representative must initiate NHPA Section 106 procedures. The NHPA Section 106 process requires that the lead agency or designated federal representative identify and assess the effects of its actions on historic resources and consult with necessary parties including state and local officials, Indian tribes, applicants for federal assistance, and members of the public. The lead agency or designated federal representative must then consider the consulted parties’ views and concerns about historic preservation issues when making final project decisions. National Historic Preservation Act, 54 U.S.C. §§ 306108; 36 C.F.R. §§ 800.2, 800.3(c).

If the lead agency and consulting parties on how the adverse effects of the undertaking may be resolved, they must execute a Section 106 agreement document that sets out the measures the lead federal agency must implement to avoid, minimize, or mitigate adverse effects. The Section 106 agreement may take the form of a Memorandum of Agreement or Programmatic Agreement, depending on the complexity of the project.

For hydropower projects, cultural resource assessments to determine whether a project may impact cultural resources may be required for hydropower licenses issued by the Federal Energy Regulatory Commission (FERC), Leases of Power Privileges (LOPPs) issued by the Bureau of Reclamation (BOR), or Section 404 permits issued under the Clean Water Act by the U.S. Army Corps of Engineers (USACE). Issuance of any one of these approvals is considered a federal undertaking as defined by the applicable federal regulations. Further, any project that falls within FERC’s jurisdiction is considered a federal undertaking, subject to NHPA Section 106.

For more information on the NHPA Section 106 consultation process, see: National Historic Preservation Act Section 106 Consultation:
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11.3 – Initiate State Cultural Considerations

Some states have a review process if a hydropower project may impact state cultural or historic resources. These cultural and historic resource review processes may require that a developer identify and assess project impacts on state cultural or historic properties or artifacts. Additionally, a developer must comply with any applicable state laws and regulations related to the discovery of human remains.

Alaska

In Alaska, a hydropower project may trigger state cultural and historic preservation review directed by the Alaska Department of Natural Resources, if the project occurs on private land on which there is an officially designated state monument or historic site, or if the project is undertaken, licensed, or permitted by the state, or located on state lands. For more information, see: State Cultural Considerations Overview:
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Arkansas

Currently, RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Arkansas.

California

In California, a hydropower project may trigger state cultural and historic preservation review directed by the California State Historical Resources Commission and considered as part of the California Environmental Quality Act review. (Cal. Pub. Res. Code § 21001(b)). For more information, see: State Cultural Considerations:
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Colorado

In Colorado, a hydropower project may trigger state cultural and historic preservation review directed by the Colorado Office of Archaeology and Historic Preservation. Co. Rev. Stat. § 24-80.1-102; Co. Rev. Stat. § 24-80.1-104(2)(a); History Colorado - Review and Compliance Webpage. For more information, see:

State Cultural Considerations Overview:
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Illinois

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Illinois.

Indiana

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Indiana.

Iowa

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Iowa.

Kentucky

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Kentucky.

Louisiana

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Louisiana.

Minnesota

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Minnesota.

Mississippi

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Mississippi.

Missouri

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Missouri.

New York

In New York, a hydropower project may trigger state cultural and historic preservation review directed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation acts as the State Historic Preservation Officer and considered as part of the State Environmental Quality Review (SEQR) process. New York - State Historic Preservation Office: National Register; N.Y. Comp. Codes R. & Regs. § 426.1. For more information, see:

State Cultural Considerations Overview:
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North Dakota

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in North Dakota.

Ohio

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Ohio.

Pennsylvania

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Pennsylvania.

Tennessee

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Tennessee.

Vermont

In Vermont, a hydropower project may trigger state cultural and historic preservation review directed by a cooperative process between Vermont Division for Historic Preservation, the Vermont Advisory Council on Historic Preservation, the Vermont State Historic Preservation Officer, the federal and/or state authorizing agency, and the developer. For more information, see: State Cultural Considerations:
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Washington

In Washington, a hydropower project may trigger state cultural and historic preservation review directed by the Washington State Department of Archaeology and Historic Preservation, if human remains or other cultural or archaeological resources are discovered on the project site. For more information, see: State Cultural Considerations Overview:
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West Virginia

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in West Virginia.

Wisconsin

Currently, the RAPID Toolkit does not have state specific content regarding cultural resources for hydropower development in Wisconsin.

11.4 to 11.6 – May the Project Affect Historic, Cultural, or Archaeological Resources?

In addition to NHPA Section 106 consultation, a developer should consider a project’s effects on historic, cultural, or archaeological resources, including artifacts of cultural significance, funerary objects, and human remains. Projects that have the potential to affect historic, cultural, or archaeological resources may be subject to identification and review processes as well as study, reporting or permitting requirements under the following federal laws:

Note: The Advisory Council on Historic Preservation (ACHP) encourages coordination of NHPA Section 106 consultation “with any reviews required under other authorities such as the NEPA, the 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, unless explicitly agreed through the execution of a Programmatic Agreement or approval of alternate procedures. 36 C.F.R. §§ 800.1 – 800.16; Relationship of Section 106 to Other Laws Webpage.

National Environmental Policy Act of 1969

A developer must assess the environmental impacts of proposed federal actions, including impacts to cultural and historic resources pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370m-12 (NEPA). NEPA establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment and provides a process for implementing these goals within the federal agencies. A developer must go through the NEPA process if a project involves a “major federal action.” Major federal actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies 40 C.F.R. § 1506.8; 40 C.F.R. § 1508.17. The level and scope of NEPA review varies depending on the nature of the project and the degree of federal government involvement. Some actions and projects will receive a categorical exclusion while others may require a full Environmental Impact Statement (EIS).

Note: Agencies may coordinate studies and documentation prepared under NHPA Section 106 with those prepared for NEPA. The ACHP regulations provide guidance on how the NEPA and Section 106 processes can be coordinated. 36 C.F.R. § 800.8(a). The ACHP regulations also set forth the manner by which a Federal agency can use the NEPA process and documentation to comply with NHPA Section 106 requirements 36 C.F.R. § 800.8(c). For more information on NEPA, see: Environmental Review Overview: 9 (1)

Archaeological and Historic Preservation Act of 1974 A developer must notify the Secretary of the Department of the Interior (Secretary) if a project may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archaeological data (data), including relics and specimens, pursuant to the Archaeological and Historic Preservation Act, 16 U.S.C. §§ 469-469c (AHPA). The developer may be required to conduct a survey or other investigation to recover and preserve any data if the Secretary determines it is within the public interest to do so. 16 U.S.C. § 469a-2.

Note: Notification to the Department of the Interior pursuant to the AHPA does not constitute compliance with NHPA Section 106.

Archaeological Resources Protection Act of 1979

A developer must obtain a permit from the appropriate agency with jurisdiction if a project requires the excavation or removal of any archaeological resource located on federal or Indian lands pursuant to the Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa-470mm (ARPA). “Archaeological Resource” means any material remains of past human life or activities which are of archaeological interest, including pottery, basketry, bottles, weapons, tools, structures, paintings, carvings, graves, or human skeletal remains. 16 U.S.C. § 470bb(1). If Federal or Indian lands are involved, the Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa-470mm (ARPA) may impose additional requirements on an agency. Specifically, 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.

Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa-470mm.

Note: Acquiring an ARPA permit does not constitute compliance with NHPA Section 106.


American Indian Religious Freedom Act of 1978

A developer must not interfere with Native American access to sacred sites or the use and possession of sacred objects pursuant to the American Indian Religious Freedom Act, 42 U.S.C. §§ 1996-1996a. AIRFA affirms the right of Native Americans to access 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 the 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.

Note: In carrying out responsibilities pursuant to NHPA Section 106, a Federal agency must consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties. 16 U.S.C. § 470a (a)(6)(A) and (B).

Native American Graves Protection And Repatriation Act of 1990

A developer must consult with and receive consent from the appropriate Indian tribe or Native Hawaiian organization prior to intentionally excavating or removing Native American human remains or associated funerary objects from federal or tribal lands pursuant to the Native American Graves Protection And Repatriation Act, 25 U.S.C. §§3001-3013 (NAGPRA). In addition, NAGPRA requires that a developer notify the appropriate federal agency, Indian tribe, or Native Hawaiian organization with jurisdiction if Native American human remains or associated funerary objects are inadvertently discovered on federal or tribal lands. 25 U.S.C. §§3002(d)(1). If an inadvertent discovery occurs in connection to an activity (e.g., construction), the activity must cease and the developer must make a reasonable effort to protect the discovery and notify the appropriate entity with jurisdiction prior to resuming activities. 25 U.S.C. §§3002(d)(2). If the cultural affiliation of Native American human remains and associated funerary objects are established, the developer must expeditiously return such remains and objects to the appropriate Indian tribe or Native Hawaiian organization. . 25 U.S.C. §§3005(a).

Note: The 1992 amendments to the NHPA strengthened NAGPRA by stipulating that a lead agency provide for the disposition of Native American cultural items from federal or tribal land in a manner consistent with NAGPRA 54 U.S.C. § 306131.








Edit Advisory Council on Historic Preservation
Hydropower Federal Preservation Officer (Federal Energy Regulatory Agency) 202-219-02732<MANY>202-502-8700 heatherabbazabbacampbell@fercabbazabbagov Visit Website


Edit National Park Service
Hydropower Licensing Contacts Visit Website




Edit Bureau of Indian Affairs
General Contact 303-969-5270 Visit Website