A major purpose of CCRPA is to provide objective reviews of the documents submitted to CCRPA for evaluation as to meeting professional standards as well as compliance with applicable state and federal laws, regulations, and policies. To avoid conflicts of interest and to maximize objectivity, the board assigns submissions to well qualified reviewers. These can include active CCRPA members or any of a number of other qualified volunteers who agree to prepare reviews. Reviewers do not receive monetary compensation. Board members evaluate the reviews before sending them to the authors or agencies who submitted them.
CCRPA works with local agencies, planners, and developers, so that they are aware of preservation options early in the planning process
Environmental Document Review
1. An Initial Study is the document city planners use to determine whether an Environmental
Impact Report (EIR) or a Mitigated Negative Declaration are required for compliance with the California Environmental Quality Act (CEQA). An EIR is required if it is determined as the result of the Initial Study, that the proposed project has the potential for significant impacts on the environment. In the case of a Mitigated Negative Declaration, certain impacts require implementation of mitigation measures to be reduced to a significant level. A problem with respect to archaeological sites is that more often than not, it is assumed that a project area that has been developed in some way (plowed, roads, etc.) or “urbanized” has little or no potential for the presence of archaeological resources. Therefore, under this assumption the proposed mitigation measures do not include provisions for the appropriate discovery and treatment of significant buried archaeological materials.
2. One thing to look for is whether the proposed development involves a creek indicated in
blue on a U.S. G.S. topographic map, or a wetlands. If so, the project will require aU.S. Army Corps of Engineers permit. This means among other things that the project must comply with Section106 of the National Historic Preservation Act. Section 106 is a consultation process involving the lead agency (the Corps), the other agencies, the project proponent, the State Historic Preservation Officer, Native American descendants, and the interested public. Section 106 provides stronger protection for archaeological sites because there is outside review.
3. The cultural resource sections of most EIRs make the assumption that the completion of a
data recovery excavation program constitutes the reduction of “potentially significant” impacts of any archaeological sites that will be impacted by the proposed project. The implementing regulations for Section 106 of the National Historic Preservation Act (36 CFR 800.5(a)(2)(iii) along with 800.5(a) (2)(I), as amended May 1999, acknowledge the reality that destruction of a site and recovery of its information and artifacts is adverse and no longer consider data recovery as sufficient mitigation to reduce the impacts to a level of insignificance.
4. Even if a project does not come under the jurisdiction of the federal government, the
California Environmental Quality Act (CEQA) was patterned after the National Environmental Policy Act and the pertinent federal regulations. Therefore, to ignore the reality that the destruction of an archaeological site is a significant impact is counter to the spirit and intent of CEQA.
5. ACCORDING TO CEQA Guidelines: When archaeological resources are involved, avoidance,
or preservation in an undisturbed state is the preferable course of action. Section 21083.2 then provides that preservation methods may include:
- Planning construction to avoid archaeological sites.
- Deeding sites into permanent conservation easements.
- Capping or covering sites with a layer of soil before building on the sites.
- Planning parks, greenspace, or other open space to incorporate and protect archaeological sites.
When avoidance is not possible, then data recovery excavation may be the only feasible mitigation measure. Therefore according to CEQA, data recovery is the last resort after the lead agency considers all of the above preservation methods and determines that they are not possible or feasible.
Unfortunately for most EIRs the only mitigation measure that is ever considered is data- recovery excavation, the last resort and there is no attempt to consider any preservation methods.
A number of EIRs cite Orange County Standard Conditions and Mitigation measures. Those that are cited do not contain provisions for the consideration of preservation methods; instead they refer to salvage operations and/or monitoring during construction.
6. EIR reviewers should request documentation indicating that the project proponent has conducted a good-faith examination of the feasibility of the above preservation measures. The project proponent should be encouraged/required to incorporate one or more of the preservation measures and include a preservation plan in the EIR. If the determination is that none of the preservation measures are possible or feasible, the justification for this determination and documentation that serious consideration was given to preservation methods should be included in the EIR. We need to get across the fact that data-recovery excavation as the only mitigation measure under consideration for the destruction of archaeological sites is not acceptable.
7. If it is determined that data-recovery excavation and destruction of the sites is the only feasible option, the investigations should be guided by a research design that follows the California Office of Historic Preservation Guidelines for Archaeological Research Designs (Preservation Planning Bulletin No. 5, February 1991. Dept. of Parks and Recreation, Office of Historic Preservation). The report documenting the excavations should follow the Office of Historic Preservation Guidelines for Archaeological Resource Management Reports (Preservation Planning Bulletin No. 5, December 1989).
8. One other problem is the attempt by some archaeological consultants to write-off
archaeological sites as not significant on the basis of little or no scientific data or documentation for this determination.
Advice regarding cultural resources/historic preservation laws, regulations, and guidelines [Link to State and Federal Cultural Resources/Historic Preservation Laws]. What Developers Need to Know – How to choose archaeologists (County approved list; South Central Information Center list; State Curation Guidelines)
SYNOPSIS OF PERTINENT FEDERAL HISTORIC AND CULTURAL PRESERVATION LAWS AND REGULATONS
Antiquities Act of 1906: (16 U.S.C. 431-433; Public Law 59-209)
This Act provides for the protection of historic and prehistoric ruins or monuments, and objects of historic or scientific interest that are situated on lands owned or controlled by the government of the United States. It makes it a federal offense to excavate, remove, or damage the antiquities. However, the secretary of the department with jurisdiction over the land is authorized to give permission for excavation to reputable institutions for increasing knowledge and for permanent preservation in public museums. Due to intensive lobbying by collectors, arrowheads located on the surface are exempt from penalties under this Act. This and the National Environmental Policy Act of 1969 are the only acts that protect paleontological resources. Due to low penalties, vague language, and the lack of implementing regulations, this law did little to prevent looting. See the Archaeological Resources Protection Act of 1979 and implementing regulations 43 CFR 7.
Historic Sites Act of 1935 (16 U.S.C. 461-467; Public Law 74-292)
This Act established that “it is a national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States. It led to the establishment of the Historic Sites Survey, the Historic American Building Survey, and the Historic American Engineering Record by giving the Secretary of the Interior authority to conduct historic surveys, recover and preserve data on historic sites, and acquire and preserve archaeological and historic sites. The National Historic Landmarks program and its Advisory Board were also established under this Act to designate properties having exceptional value as commemorating or illustrating the history of the United States.
Reservoir Salvage Act of 1960 (Public Law 86-532)
This Act provided for the recovery and preservation of exceptionally significant historic and archaeological data that might otherwise be lost as the result of the construction of a dam by a Federal agency or by a private entity with a federal permit. It was amended and included in the Archaeological and Historic Preservation Act of 1974, which broadens the scope to include any alteration of terrain caused as a result of any federal construction project or federally licensed activity or program, and significant (not just exceptionally significant) archaeological data.
National Historic Preservation Act of 1966 (16 U.S.C. 470 et seq; Public Law 89-665, and amendments of 1980 and 1992)
This Act establishes national policy for historic preservation, authorizes expansion and maintenance by the Secretary of the Interior of a National Register of Historic Places, creates the Advisory Council on Historic Preservation, and provides for the designation of a State Historic Preservation Officer and staff to administer the State Historic Preservation program. Section 106 of the Act specifies that Federal agencies shall, prior to the approval of the expenditure of any funds on an undertaking or prior to the issuance of any license or permit, take into account the effect of the undertaking on any property included in or eligible for inclusion in the National Register and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. The 1992 amendments create tribal preservation offices, add a Native American to the Advisory Council on Historic Preservation, make explicit the eligibility of religious properties for Historic Preservation Fund grants, require the Secretary of the Interior to report to Congress every four years on threats to historic properties, and incorporate portions of the 106 process.
National Environmental Policy Act of 1969 (42 U.S.C. 4321 Et Seq.; Public Law 91-190)
This act established the national policy regarding the environment. Federal agencies are required to use an interdisciplinary approach in planning and decision-making and to prepare environmental assessments and Environmental Impact Statements (EIS) for every Federal action that affects the quality of the environment. The environment is defined to include cultural as well as natural resources.
Executive Order 11593 Protection and Enhancement of the Cultural Environment: (16 U.S.C. 470, 1971)
Federal agencies are directed by this Executive Order to assume responsibility for the preservation of historic properties under their jurisdiction or control. The agencies must survey and nominate all significant historic properties to the National Register. This information is to be used to manage the properties so that they are taken into consideration prior to any action that might affect them, and to assure that National Register eligible properties are not inadvertently transferred, sold, demolished, altered, or allowed to deteriorate. This order was incorporated into the National Historic Preservation Act under Section 110 by the amendments of 1980.
Archeological and Historic Preservation Act of 1974 (Archeological Recovery Act, or the Moss-Bennett Act, 16 U. S. C. 469-469c; Public Law 93-291)
This Act amends the Reservoir Salvage Act of 1960 in three significant ways. (1) It provides for the preservation of historic and archeological data which might otherwise be lost or destroyed as the result of any alteration of the terrain by any fderal construction project or federally licensed project, activity or program. (2) It provides for the protection of significant (not just exceptionally significant) scientific, prehistoric, historic, or archeological data. (3) Where Federal construction projects are directly involved, it authorizes the expenditure of up to one percent of the amount authorized to be appropriated for the project for data recovery and other mitigation measures.
American Indian Religious Freedom Act of 1978 (42 U.S.C. 1966; Public Law 95-341)
This Act makes it the policy of the government of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indians, Eskimos, Aleuts, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites. It further directs Federal agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices.
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-470mm; Public Law 96-95)
The central purpose of the Act is to preserve and protect archeological resources located on public and Indian lands. Permits to excavate or remove such resources may be granted by the appropriate Federal land manager to qualified investigators if the proposed work is expected to contribute to archeological knowledge and is in the public interest. Work on Indian lands requires Indian approval. Archeological materials removed from public lands remain the property of the United States. The Secretary of the Interior may develop regulations which provide for the disposition of such archeological materials. Penalties of up to $100,000 and up to five years imprisonment may be assessed for various types of offenses relating to unauthorized removal, acquisition, or disposal (usually by sale), or vandalism of archeological materials and sites from public or Indian lands. Reward of up to $500 may be paid for information directly leading to the conviction of violators. Information concerning site locations is considered to be confidential and exempt from the Freedom of Information Act. Cooperation and communication are encouraged among the professional archeological community, federal resource managers, and private collectors whose collections wee amassed before enactment of this Act. No permits or penalties are connected with the collecting of arrowheads, rocks, coins, bullets, or minerals located o the surface of the ground.
Native American Graves Protection and Repatriation Act of 1990 (25 U.S.C. 3001; Public Law 101-601)
This Act provides for the protection and repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony that are excavated or discovered on federal or tribal lands, or that are in the possession or control of Federal agencies or museums and institutions that receive federal funds. It amends the illegal trafficking code (Chapter 53 of title 18) to include fines and imprisonment for illegal trafficking in Native American human remains and cultural items. Federal agencies and museums which have possession or control over the above mentioned objects are required to compile an inventory, and to the extent possible, identify the geographical and cultural affiliation of the objects, prepare a written summary, and notify the affected Indian tribes or Native Hawaiian organizations. If the cultural affiliation of Native American human remains and objects is established, upon the request of a known lineal descendant of the Native American or of the tribe or organization, they are to be expeditiously returned with the following provisions: (1) If the items are indispensable for completion of a specific study, the outcome of which would be of major benefit to the United States, they shall be returned within 90 days upon completion of the scientific study. (2) If there are competing claims for repatriation of any cultural item and the Federal agency or museum cannot clearly determine which requesting party is the most appropriate claimant, the agency or museum may retain the item until agreement is reached or the dispute is resolved by a court of competent jurisdiction. The Act provides for the establishment of a committee appointed by the Secretary of the Interior to monitor and review the implementation of the inventory, identification, and repatriation process. Three members shall be Native Americans, three shall be representatives of national museum and scientific organizations, and one shall be an appointment approved by the members of the committee. Finally, the Act contains provisions for grants to Indian tribes and native Hawaiian organizations to assist them in the repatriation process, and to museums to assist them in the inventory and identification process.
36 CFR 800 Protection of Historic Properties: Regulations of the Advisory Council on Historic Preservation Governing the Section 106 Review Process (1986)
This regulation provides step by step procedures for the implementation of Section 106 of the National Historic Preservation Act. It identifies the participants in the 106 process, and the information, documentation, and consultation that are required to identify historic properties, evaluate their significance with respect to National Register eligibility, assess the project effects on National Register eligible properties, determine ways to avoid or reduce the effects, prepare determinations of effect and Memoranda of Agreements and afford the Council an opportunity to comment.
36 CFR 79 Curation of Federal-Owned and Administered Archeological Collections (1990)
This regulation establishes definitions, standards, procedures and guidelines to be followed by federal agencies to preserve collections of prehistoric and historic materials, and associated records that are recovered in conjunction with federal undertakings under the aforementioned historic preservation laws. It includes procedures and guidelines to manage and preserve collections, standards to determine when a repository has the capability to provide long-term curatorial services, methods to fund curatorial services, terms and conditions for contracts, memoranda, and agreements for curational services; and guidelines to provide access to, loan, and otherwise use collections. It also requires Federal agencies to inventory the collections under their jurisdiction, and to conduct periodic inspections both of the physical plant and the collections.
36 CFR60.4 National Register of Historic Places Criteria
The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling and association, and that (a) are associated with events that have made a significant contribution to the broad patterns of our history; or (b) that are associated with the lives of persons significant in our past; or (c) that represent the work of a master, or that possess high artistic values, or that represent a significant distinguishable entity whose components may lack individual distinction; or (d) that have yielded or may be likely to yield information important in history or prehistory.
43 CFR 7 Protection of Archaeological Resources
This regulation implements provisions of the Archaeological resources Protection Act of 1979 by establishing the uniform definitions, standards, and procedures to be followed by all Federal land managers in providing protection for archaeological resources located on public lands and Indian lands of the United States. These regulations enable Federal land managers to protect archaeological resources, taking into consideration provisions of the American Indian Religious Freedom Act, through permits authorizing excavation and/or removal of archaeological resources, through civil penalties for unauthorized excavation and/or removal, through provisions for the preservation of archaeological resource collections and data, and through provisions for ensuring confidentiality of information about archaeological resources when disclosure would threaten the archaeological resources.
Department of the Interior, National Park Service, Archeology and Historic Preservation; Secretary of the Interior’s Standards and Guidelines (1983)
These standards and guidelines are not regulatory. They are intended to provide technical advice about archeological and historic preservation activities and methods. They include standards and guidelines for preservation planning, identification, evaluation, developing historic contexts, research designs, architectural and engineering documentation, report preparation, and preservation techniques. It also includes professional qualifications standards for history, archeology, architectural history, architecture, historic architecture.