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Solar Cultural Resources Overview (11)

A solar 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, a developer 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 (developer) must take into account the effects that a federal undertaking may have on historic properties through conducting consultations with necessary 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 developer must initiate NHPA Section 106 procedures. The NHPA Section 106 process requires that the lead agency or developer 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 developer 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 or developer and consulting parties agree on how to resolve the adverse effects of the undertaking, they may 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 more information on the NHPA Section 106 consultation process, see: National Historic Preservation Act Section 106 Consultation:

11.2 - Initiate State Cultural Considerations

Some states have a review process if a 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.

State Cultural Considerations:

State Cultural Considerations:

State Cultural Considerations:

State Historical Preservation Review:

State Cultural Considerations:

State Cultural Considerations:

State Cultural Considerations Overview:

State Cultural Considerations:

State Cultural Considerations Overview:

State Cultural Considerations:

State Cultural Considerations:

State Cultural Considerations Overview:

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. Archaeological and Historic Preservation Act, 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.

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