When and Why Do Private Land Developers Need the Services of Professional Archeologists?

 

Part I: Under Federal Law

Development projects on private land are sometimes subject to federal law that require consideration of the historic resources on or near the project property. There are two principal authorities that govern the federal government’s responsibility for the treatment of historic resources. The National Environmental Policy Act (NEPA) directs the government to take into consideration the impact of its actions on the environment, which includes the natural, as well as the human, resources. Historic resources, including archeological sites and all manner of historic properties, are considered part of the environment and, thereby, enjoy some protection under this umbrella law. The specific protection/treatment of historic resources is directed by Section 106 of the National Historic Preservation Act of 1966 (NHPA).  This act very simply states that all federal agencies must "take into account" the effects of their actions on historic properties and afford the Advisory Council on Historic Preservation (which was also created by this legislation) the opportunity to comment on their actions.

The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that “...promotes the preservation, enhancement, and productive use of our Nation's historic resources.” In addition, it advises the President and Congress on national historic preservation policy. The twenty-member Council includes four members of the general public, four historic preservation experts, and four heads of federal agencies, all appointed by the President. It also includes presidential appointed representatives of local governments, state governments, and Native American or Native Hawaiian interests, the Secretary of the Interior, the Secretary of Agriculture, the Architect of the Capitol, the Chairman of the National Trust for Historic Preservation, and the President of the National Conference of Historic Preservation Officers.

The particulars of how Section 106 is to be enacted have been codified in a series of regulations. The core regulations of what has come to be known as the Section 106 process are found in Title 36, Part 800 of the Code of Federal Regulations (36 CFR 800). These regulations, and others, and their various subsequent revisions define the terms of the National Historic Preservation Act and provide directives and guidance as to how federal agencies can effectively comply with the law’s intent. While NHPA and the regulations concerning Section 106 go into daunting detail, the following presents some of the key points.

Federal Undertakings

At this point, the reader may wonder how in the world this federal law governing federal undertakings could possibly come into play in the development of private land by private parties. The key is in understanding what is meant by “federal undertaking.” NHPA defines a federal “undertaking” as any action taken by an agency itself, any action an agency has done for it, any action funded in full or in part by a federal agency, any action an agency delegates or oversees a state or local regulatory body to do, and any actions that require federal permits or licensing. It is this last portion of the definition that is most frequently pertinent in the context of private land development. And in our work, it is when clients are required to apply for a Section 404 permit from the Army Corps of Engineers that they are also required (because they are issued this permit by a federal agency) to comply with Section 106 of NHPA. The Section 404 permit, commonly called a “wetland permit,” is required whenever development will impact waters of the United States (WOUS), which include wetlands, streams, ponds, lakes, mudflats, and oceans. And, of course, there is a range of other types of development projects that are subject to this law, including all projects on federal land, projects undertaken by or for an agency on private land, projects with HUD financing, federally funded transportation and public works projects, etc.

Historic Properties and the National Register of Historic Places

So, any land developer that is required to apply for a “wetland” permit is also required to “take into account” the effects of their actions on historic properties. In the context of compliance with Section 106 of NHPA, historic properties are considered to be sites, buildings, structures, objects, and districts that are listed or are eligible to be listed on the National Register of Historic Places. NHPA authorized the National Park Service to expand and maintain the National Register, a listing of properties of cultural, historical, and/or architectural significance. The rules for the National Register, including criteria for determining what can and cannot be listed, are set out in 36 CFR 60. These regulations state that in order for a property to qualify for listing on the National Register, it must have “integrity” and it must meet at least one of the following criteria paraphrased below:
  1. Association with an important event in our history
  2. Association with an important person in our history
  3. Possession of distinctive characteristics of type, period, or method of construction (most often this translates to distinctive architectural or engineering qualities)
  4. Has yielded or has the potential to yield important information in history or prehistory (most archeological sites that are considered significant are considered so for this reason)
The issue of what constitutes “integrity” can be problematic, but the intent of the requirement is that the physical properties of the property remain sufficiently intact so that whatever qualities it possesses that impart its significance (as defined by the above criteria) are not overly compromised. So, properties that possess integrity and are significant in one of the ways defined above are National Register eligible. Remember that it is not necessary that a property be actually listed on the Register or even nominated; if it is eligible -- or, in some cases, potentially eligible -- it must be “taken into account” during federal undertakings.

Taking into Account Historic Properties

What does it mean, then, to “take into account” historical properties during federal undertakings? First, the responsible party -- be it the federal agency itself or the party funded, permitted, or licensed by a federal agency -- must determine whether or not National Register eligible properties will be affected by a proposed undertaking. It is at this stage in the process that the responsible party (if such expertise is lacking in-house) would engage a consultant (such as the Thunderbird  Archeology Division of WSSI) to determine whether or not such properties are present within the area to be affected by the proposed undertaking. Enter the archeologists and the Phase I survey.

Section 106 does not dictate how historic properties must be located and identified on a project area. Rather, the law authorizes and funds the creation of State Historic Preservation Officers (SHPOs) to oversee the federal historic preservation program in each state, and it is the SHPO’s office that directs and creates guidelines for Section 106 compliance within each state.  The Virginia Department of Heritage Resources (VDHR) has issued guidelines similar to those in many other states that satisfy the requirements of Section 106 of NHPA for the identification of National Register eligible properties. The VDHR guidelines also govern compliance with state historic preservation laws that protect historic properties affected by state undertakings, and they serve as models for some local jurisdictions with historic preservation laws and ordinances. The VDHR guidelines state that the goal of a Phase I survey is to determine whether or not there are any archeological resources of any kind that will be affected by a given action; the Phase II survey is designed to evaluate whether or not a particular archeological site meets the criteria set forth for eligibility for the National Register and thus must be “taken into account.” (See Levels of Archeological Investigations below).

Concurrent with the determination of whether or not there are National Register eligible properties on or near the project area is the issue of whether or not they will be affected by the proposed undertaking and, if so, how. In order to make this determination, the agency must know the following: (1) what will happen during the proposed undertaking and where; (2) what National Register eligible historic properties are likely to be affected either directly or indirectly by these actions; and (3) whether or not the effects of these actions on the property would be adverse.

The determination of what kind of and where actions will take place is entirely project-specific and involves the definition of the area that will be directly affected by the proposed actions and the area that will be indirectly affected. Indirect effects may include visual, atmospheric, and/or audible changes to the setting of an historic property. The entire area that will be directly and indirectly affected by the proposed undertaking is referred to as the “Area of Potential Effect” (APE). A more detailed discussion of the APE and permit areas in the context of Department of the Army COE permits is presented below.

When it has been determined that an undertaking will affect an historic property, it must then be determined whether the effect is adverse. An adverse effect is defined in 36 CFR 800.5a as anything that would “diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling or association.” This somewhat mystifying definition may best be understood as anything that compromises the qualities of a property that lend it significance. Examples of adverse effects include physical destruction, removal of a property from its historic location, neglect, certain alterations to a property, changes of the property’s use, and transfer, lease, or sale of the property. The regulations also state that adverse effects “... may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative” (36 CFR 800.5a1). This statement proves critical in the debate between certain federal agencies (the Army Corps of Engineers, in particular) and SHPOs regarding the determination of effects of the agencies’ undertakings on historic properties (see below).

If and when it is determined that an undertaking will result in an adverse effect on an historic property, the consulting parties (including the agency and the SHPO at the very least) will attempt to develop alternatives or modifications to the planned action that would avoid, minimize, or mitigate the adverse effect. The product of this consultation is a Memorandum of Agreement (MOA). If the parties cannot come to an agreement, the issue is referred to the Advisory Council on Historic Preservation for comment and resolution.

In the case of National Register eligible archeological sites that would be adversely affected (usually through destruction), the possibilities of minimizing the adverse effect frequently boil down to two choices: avoid the site entirely or excavate the site to recover as much data as possible from the site prior to its destruction. Avoidance is always the preferred alternative; excavation destroys the site and is also considered an adverse effect, albeit preferable to destruction without documentation. Data recovery at a site that is slated to be destroyed is called a Phase III archeological investigation (see below).

Historic Properties and COE Permits

The Department of the Army has established its own set of procedures to be followed by the U.S. Army Corps of Engineers (COE) to fulfill the requirements set forth in NHPA. These are codified in 33 CFR 325, Appendix C. They serve as guidelines for the COE, but they do not supersede NHPA and 36 CFR 800. In fact, the Advisory Council on Historic Preservation refused to approve Appendix C, possibly because of its confusing language, internal inconsistencies, and its inconsistencies with 36 CFR 800. Perhaps its greatest shortcoming is the complete absence of any mention of the area of potential effects (APE) and, therefore, the lack of guidance as to how the APE should be defined.

Following 36 CFR 800, one of the first steps in the Section 106 process is the identification of the area of potential effects (APE) of a given undertaking. In order to identify the APE, however, the undertaking itself must be defined, and it is the responsibility of the federal agency to define its own undertakings. For the Department of the Army, an undertaking is defined as any “work, structure, or discharge” that requires a COE permit. The geographic limits of a COE undertaking are defined by the permit area.

The permit area for COE undertakings is defined in 33 CFR 325, Appendix C.1g. These guidelines represent the Department of the Army’s effort to precisely define the limits of its jurisdiction for work or structures that it is required by law to regulate through permits. The permit area is defined as “...those areas comprising the waters of the United States that will be directly affected by the proposed work or structures and uplands directly affected as a result of authorizing the work or structures.” Because submerged historic properties are rarely an issue in Northern Virginia, it is the uplands portion of a COE permit area that is critical for our work. And it is exactly this that is most difficult – and apparently controversial – to define. The regulations specify three conditions that must be met for an upland area to be included in the permit area. They are:
     
  1. Such activity would not occur but for the authorization of the work or structures within the waters of the United States;
  2. Such activity must be integrally related to the work or structures to be authorized within waters of the United States. Or, conversely, the work or structures to be authorized must be essential to the completeness of the overall project or program; and
  3. Such activity must be directly associated (first order impact) with the work or structures to be authorized.
If these conditions seem somewhat mystifying to the reader, you are not alone. The regulations go on to offer several examples of where and when uplands may be included in the permit area, but they leave some room for multiple interpretations. Even within the COE, there appears to be some inconsistencies and debate as to how these regulations are to be interpreted, and the result has been somewhat diverse definitions of permit areas within and among district COE offices. This variability can be a significant problem in regards to assessing the effects of COE undertakings, and it is a source of conflict among consulting parties in the Section 106 process.

Once the geographic limits of the undertaking are defined, it is then the responsibility of the federal agency in consultation with the SHPO to define the area of potential effects (APE). The area of potential effects is defined as follows in 36 CFR 800.16d, the regulations governing Section 106 of NHPA:

“Area of potential effects means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.”

Thus, the area of potential effects of an undertaking includes not only the direct physical effects on historic properties, but also its indirect effects. Indirect effects of an undertaking can include visual effects, auditory effects, sociocultural effects, and effects on culturally significant natural resources. Historic properties that are most vulnerable to potential indirect effects are above ground resources, such as buildings, districts, structures (e.g., roads, bridges, etc.), landscapes, etc. An accurate definition of the APE is critical for the protection of these above ground properties. As archeological sites are almost always buried, they are rarely subject to these types of indirect effects of an undertaking. However, the definition of the APE, in the case of COE permitted undertakings, is not quite so simple - perhaps because Appendix C does not provide the appropriate guidelines. In Virginia, as in other states, the Corps and the Virginia Department of Historic Resources (VDHR) are frequently in disagreement as to how the effects of an undertaking are to be assessed.

The first problem is in the definition of the undertaking itself. In the case of COE permitting, as in the case of all federal undertakings, a distinction is made between the area of potential direct effects and the entire APE. The area of potential direct effects is confined to the area of the undertaking itself, which is defined by the permit area. It is within this area that the direct physical effects of an undertaking on historic properties, including archeological sites, must be considered under the requirements of NHPA. So, defining the permit area – and thus the geographic boundaries of the undertaking – also defines the area within which the Corps must consider potential direct effects on archeological sites.

The VDHR takes issue with how the Corps defines its undertakings (i.e., permit areas) and argues that the Corps takes too narrow or too restricted a view of its jurisdiction. The Corps follows its own regulations for defining a permit area and includes only those upland areas that it determines meet the three criteria stated above. For example, in a subdivision that contains a storm water management pond, the Corps would include the berm constructed to dam the water and the area flooded by the water contained in the pond. It would not consider the surrounding subdivision to be part of the permit area because it is not integrally related to the pond, it is not directly associated, and alternative means could have been used to manage the storm water. The VDHR takes the position that the COE must consider all the consequences of its undertakings, including enabling the larger development projects for which the COE permitted undertaking is a small, but necessary, part. The VDHR cites the federal regulations that state that adverse effects on historic properties “... may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative” (36 CFR 800.5a1).

Two recent cases in this region revolved around this dispute. In 2003, the Corps issued a permit for a road crossing and two storm water management ponds for a 227 unit housing development visible from Oatlands Plantation in Loudoun County. In 2004, several interested parties filed suit against the Corps for using Appendix C to evaluate the effects of the proposed development on the nearby historic properties. In a settlement of the lawsuit, the Corps agreed to consider the effects on the historic properties of the entire planned development, not just the permitted areas. Meanwhile, the developer had redesigned the project, eliminating the need for a wetland permit altogether – and, thereby, eliminating the need for the Section 106 process.

A second case involved a development project adjacent to Rippon Lodge in Prince William County. Once again, the Corps considered only the effects of the narrowly defined permitted areas within the project and not the entire 800 unit development. The SHPO and the county argued that the Corps should use the ACHP regulations and not Appendix C when considering the effects of its undertakings. In 2004, the ACHP entered into the consultation process. The Corps has since agreed to consider the effects of the entire project on Rippon Lodge. A group of consulting parties has collaborated on a Memorandum of Agreement that addresses these concerns.

This on-going dispute between the COE and the Virginia SHPO is more pronounced in some Corps districts than in others, depending on how the district engineer interprets Appendix C. As long as the Corps uses Appendix C as a guide to their compliance with the Section 106 process, and as long as Appendix C remains unchanged and unapproved by the ACHP, it is likely that the dispute will continue.

Levels of Archeological Investigations

Following the Guidelines for Archaeological Investigations in Virginia, there are three levels of archeological investigations that are used to fulfill requirements of Section 106 regulations in Virginia. These are designated Phase I (identification), Phase II (evaluation), and Phase III (treatment) investigations. These are described briefly below.

The goals of a Phase I survey are to locate and identify all archeological sites within a project area, to estimate site boundaries, and to assess the site’s potential eligibility for inclusion on the National Register of Historic Places. Phase I investigations include background research that identifies previous archeological investigations on and near the project and establishes prehistoric and historic contexts for sites potentially located on the project area. The field component of a Phase I investigation should be appropriate to existing field conditions, but typically entails a visual inspection of areas with 50% or greater exposure and subsurface testing of all high probability areas. The latter is accomplished with shovel test pits excavated at 50-foot intervals augmented by additional testing as needed. It should be noted that ordinarily the precise boundaries of a site are not established during a Phase I investigation. The definition of site boundaries requires additional work and is normally part of a Phase II investigation.

The goals of a Phase II investigation (also known as a site evaluation) are to determine whether the site is eligible for the National Register of Historic Places and to provide recommendations for future treatment of the site. These investigations include expanded background research and field testing focused on defining the site boundaries and determining site chronology, function, organization, and integrity. The results of these investigations are then evaluated to determine if the site is eligible for the National Register. Archeological sites are most frequently eligible because of their potential to yield important information about prehistory or history. Once the site boundaries are defined during the Phase II investigation, a land survey is required to locate the boundaries of the site in order to determine whether or not the site will be impacted by proposed development.

Phase III investigations (data recovery) are conducted on National Register eligible sites when it has been determined that preservation is not a practical treatment. The goal of a Phase III investigation is to make a record of a site before it is destroyed. The objective is to recover sufficient data from a site to address defined research questions and make its physical existence redundant. There is no single way to proceed, and each investigation is tailored to the specific site in question.

Part II: Under Local Jurisdictions

Fairfax County

In Fairfax County, developers may be required to address cultural resource issues through the development review process. Projects that require zoning actions (e.g., rezones, special exceptions, etc.) are subject to review by a number of county departments, including the Cultural Resource Management and Protection Section (CRMPS) of the Fairfax County Park Authority. This office submits comments regarding each zoning application to the Planning Office. Where warranted, these comments may include recommendations for archeological investigations as a condition for granting the requested zoning action. These recommendations are then compiled with others from the various reviewing departments and presented to the zoning applicant as proffers. In essence, the requirement for archeological work is part of the negotiation process between the County Planning Office and the developer applying for zoning action. Development projects that do not require zoning action (“by right” projects) are not subject to this review process, and these properties are not required by the county to be tested or otherwise investigated for archeological resources.

Because the cultural resource management process in Fairfax County is driven by the proffer system and not by ordinance and because development projects are reviewed by a team of professional archeologists, there is greater room for flexibility and adjustments for the individual needs of each project. Thus, the CRMPS office may recommend specific methods of investigations or scopes of work tailor-made for individual projects, rather than always recommending a standard Phase I survey for every applicant. The protection and management of historical resources in Fairfax County are supported by policy stated in the Comprehensive Plan and by priorities and strategies as stated in the County Heritage Resource Plan.

The City of Alexandria

In the City of Alexandria, the protection of archeological resources in the context of development is authorized in Section 11-411 of the Zoning Ordinance. Prior to the filing of an application for approval of a preliminary site plan for any project, the applicant must confer with the Office of Archeology in order to complete a preliminary assessment of the potential archeological significance of the site plan area and of the impact of the planned development. If the Office of Archeology determines that the site plan area has potential archeological resources that would be adversely affected by the planned development, it will then require that an archeological evaluation report and resource management plan be submitted as part of the preliminary site plan application. The archeological evaluation report must be prepared by a qualified archeologist or historian and will follow guidelines developed in consultation with the Office of Archeology. These evaluations may be identical to standard Phase I surveys, but they may require additional investigations as deemed necessary by the Office of Archeology. As in Fairfax County, there is more room for archeological investigations on properties to be developed to be specifically designed for individual project areas.

Loudoun County

Until recently in Loudoun County, Phase I archeological surveys were required with most development applications, including both legislative applications (such as, rezoning and special use applications) and administrative applications (primarily “by right” subdivision applications). The regulation requiring archeological survey for legislative applications is part of the County Zoning Ordinance (Section 6), while the regulation governing administrative applications is stated in the Facilities Standards Manual (FSM, section 8.102). Phase I surveys are frequently required as proffered conditions in the case of legislative applications. Recent revisions to the FSM affect how “by right” developments are required to consider historical resources. The revised process calls for a Phase IA Reconnaissance Level Archeological Survey (see below) to accompany the Existing Conditions Plat for preliminary subdivision applications. Following that, the preliminary subdivision plat must be accompanied by the results of a Phase I survey unless the Phase IA does not recommend such a survey, or if the Director waives the requirement because of prior disturbance or environmental characteristics of the property that make the presence of cultural resources unlikely, or if the application proposes low density development (1 lot per 20 acres or lower density). In essence, these proposed changes will begin the historical resource review process earlier in the development permitting sequence for administrative (“by right”) applications. For those projects that a Phase IA survey has resulted in a recommendation for no further investigations, it will also complete the process sooner.

A Phase IA survey is a preliminary assessment of the probability of significant historic resources being present on a given project area. It entails an examination of historic maps and a review of the sites that have been recorded in the vicinity of the project; it also involves a walkover of the property to examine the topography and to identify surface features and evidence of disturbance. If it is found there is a moderate to high probability that there are significant historic resources on the property, a full Phase I survey will be recommended.

In the case of legislative applications, if a Phase I survey results in a recommendation for further investigations (Phase II and III investigations), the reviewing bodies may include the recommendation as a proffer condition for rezoning applications or as a condition of approval for special exceptions. The county can also recommend Phase II or III investigations on administrative (by-right) applications, but it cannot require them.

Prince William County

The Cultural Resource Chapter of the Prince William County Comprehensive Plan and the County Zoning Ordinance specify the circumstances that require archeological surveys of private land slated for development. The Prince William County Historical Commission assists the Board of County Supervisors in identifying and documenting historic resources. The more significant cultural resources are identified in the Comprehensive Plan as Designated Cultural Resources. The Comprehensive Plan also recognizes portions of the county as high sensitivity areas for historic and prehistoric resources (also called Historic Resource Management Overlay areas). The county requires a cultural resources maps and records check be conducted and submitted with any application for a rezoning, a special use permit, and/or a Comprehensive Plan amendment. If a determination is made that the property is within a sensitive area or includes a Designated Cultural Resource, a Phase I archeological survey is required for rezoning and special use permit applications. It is further recommended in the Comprehensive Plan that Phase II or III investigations of the area to be disturbed be conducted as determined by the archeologist in the prior investigations. If a project area does not fall within a high sensitivity area or a Designated Cultural Resource, but the Historical Commission feels an archeological survey is warranted, the Commission can recommend that a Phase I survey be conducted. Recommendations for Phase I survey also originate from the County Archaeologist. The survey can be proffered at the time of rezoning or conditioned as part of a special use permit to be completed prior to subdivision or site plan approval. The County Archaeologist reviews all cultural resource management reports for concurrence and is available for consultation on Phase I and II report results and all scopes of work.

Finally, by Zoning Ordinance, when there is either historical evidence or physical evidence of a cemetery on land to be developed, the county now requires that the developer conduct a cemetery delineation to verify its presence and to define its boundaries. The limits of the burials shall be used to establish the perimeter boundary of the cemetery on the site plan or subdivision plat and plan. The ordinance also stipulates that a 25 foot buffer shall be established around the perimeter and that pedestrian access to the cemetery be provided. In addition, the ordinance requires that no grading exceed a 3 to 1 slope within 50 feet of the cemetery and that the cemetery be fenced, planted, and maintained in accordance with county guidelines.

For additional information, please contact Kim Snyder with the Thunderbird Archeology Division of Wetland Studies and Solutions, Inc.