2017/11/02 Army Environmental Program Division SHPO & Tribal - - PDF document

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2017/11/02 Army Environmental Program Division SHPO & Tribal - - PDF document

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2017/11/02 Army Environmental Program Division SHPO & Tribal Consultation Kathleen McLaughlin Department of the Army Deputy Federal Preservation Officer 1 Assistant Chief of Staff for Installation Management Assistant Chief of Staff for

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2017/11/02 1

Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Army Environmental Program Division

SHPO & Tribal Consultation

Kathleen McLaughlin Department of the Army Deputy Federal Preservation Officer

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Requirements of Section 106

  • Consider effects of actions on ALL kinds
  • f historic properties
  • Consultation with SHPO or Tribe(s)

– does not mean proponent obtains a “clearance” or “approval” to impact historic resources

  • Does not equal compliance with NEPA

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

SECTION 106 PROCESS

  • Establishundertaking
  • Notify SHPO/THPO
  • Identify tribes and other consulting

parties

  • Plan to involve the public
  • I. INITIA

TE the process [800.3]

  • Consult with SHPO/THPO,tribes,and
  • ther consulting parties
  • Involve the public
  • 2. IDENTIFY historic properties [800.4]

C O N S

  • DetermineAPE

U

  • Identify historicproperties

L T A T I O N

No undertaking /potential to cause effects

  • Apply criteria of adverse
  • effect
  • Consult with SHPO/THPO,tribes,and
  • ther consulting parties

Involve the public

  • 3. ASSESS adverse effects [800.5]
  • Notify ACHP
  • A

void, minimize,or mitigate adverseeffects

  • Consult with SHPO/THPO,tribes,and
  • ther consulting parties
  • Involve the public

Formal ACHP comments

  • 4. RESOLVE adverse effects [800.6]

No historic properties present/ affected No historic properties /affected Memorandum

  • f Agreement

FAILURE to agree [800.7] 3

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

  • Establish the Undertaking
  • Notify SHPO/Tribes
  • Identify tribes and other consultingparties
  • Plan to involve the public
  • 1. Initiate the process[800.3]

C O N S U L T A T I O N

No undertaking /potential to cause effects 4

Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Step 1: Initiate the Process

  • Section 800.3
  • Agency Initiates process
  • Establish whether activity is an “undertaking” subject

to review

– project, activity, program funded in whole or in part by Federal agency or requiring Federal permit

  • Determine who should be consulted
  • Plan for public participation
  • Coordinate with other reviews

– NEPA, NAGPRA, etc.

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Establish That There Is An Undertaking

  • This is a proactive analysis by agency
  • If not an undertaking, Agency may

proceed

  • If Federal action is an undertaking,

proceed to the next step - determining scope of the undertaking and identifying consulting parties.

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Consulting Parties

  • Agency consults with SHPO to identify potential consulting parties to participate
  • Federally‐recognized Tribes and Native Hawaiian Organizations (NHO)
  • Local government representatives
  • Applicants for Federal assistance, permits, licenses, and approvals (36 CFR

800.2(c)(4))

  • Other Consulting parties (36 CFR 800.2(c)(5)) (e.g. LRA in BRAC actions)
  • National Park Service (NPS) (undertaking involves NHL)
  • National Trust for Historic Preservation
  • Interested Public (nature & threshold different than for Consulting Parties)

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

  • DetermineAPE
  • Identify historic properties
  • Consult with SHPO/Tribes,and other

consultingparties

  • Involve the public
  • 2. IDENTIFY historic properties [800.4]

C O N S U L T A T I O N

No historic properties present/ affected 8

Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Step 2: Identify Historic Properties [800.4]

  • Finding and Evaluating Historic

Properties

– Determine scope of efforts – Identify Area of Potential Effects (APE) – Identify historic properties – Evaluate historic significance – Make formal finding of whether historic properties may be affected

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Identification

  • Archaeological and/or architectural historical

surveys

  • Interviews/Oral histories
  • Historical background research
  • Geomorphological studies
  • Other studies
  • Must document a reasonable good faith effort

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Evaluation

  • National Register of Historic Places
  • Eligible for the National Register
  • 36 CFR Part 60 - National Register

regulations

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Army Environmental Program Division

  • Buildings
  • Structures
  • Sites
  • Objects
  • Districts

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Types of Eligible Properties

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Criteria for Eligibility

A:Association with events B:Association with persons C:Distinctive characteristics of building or structure

  • work of a master
  • artistic value
  • distinguishable entity
  • defining features

– interior or exterior

D:Information potential

  • Properties that have produced or may produce information important

to history or prehistory

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Who Decides on Eligibility

  • The agency and SHPO consult on

eligibility

– Tribe if relevant

  • Disagreement, or if the Council and / or

Secretary of Interior requests:

– Formal determination of eligibility must be made by the Keeper of the National Register, in the National Park Service (36 CFR 63)

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Potential Outcomes of Evaluation

  • No historic properties (HP) affected:
  • a. No historic properties present; OR
  • b. HP present but no effect on them
  • HP present and may be affected
  • Apply criteria of Adverse Effect
  • Consultation
  • 30-day time period (SHPO)

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

C O N S U L T A T I O N

  • Apply criteria of adverse effect
  • Consult with SHPO/Tribes,and other

consultingparties

  • Involve the public
  • 3. ASSESS adverse effects [800.5]

No historic properties /affected 16

Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Examples of Adverse Effects

  • Physical destruction, damage, or alteration

(unless sanctioned by culture)

  • Removal of property
  • Change in the character
  • Introduction of incompatible visual,

atmospheric, or audible elements

  • Neglect of a property, and
  • Transfer, lease, or sale of the property OUT OF

FEDERAL CONTROL without preservation restrictions

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Potential Outcomes

  • Adverse Effect
  • Continue consultation to resolve
  • No Adverse Effect
  • 30 days review by SHPO/Tribes & Consulting parties.

– If no response by SHPO/Tribes & Consulting Parties within 30 days you may proceed to next step in process

  • Disagreement process

– Continue consultation until reach agreement that NAE or; – Seek ACHP review (15 days + 15 days if needed) - ACHP will make adverse effect finding in this case

  • Disagreement resolution or Agency affirms NAE and sends

documentation to the ACHP .

  • Agency proceeds.

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

  • Notify Council
  • Consultation
  • 15 day response period
  • Documentation

C O N S U L T A T I O N

  • Notify ACHP
  • A

void, minimize,or mitigate adverseeffects

  • Consult with SHPO/THPO,tribes,and other

consultingparties

  • Involve the public
  • 4. RESOL

VE adverse effects [800.6]

Memorandum

  • f Agreement

FAILURE to agree [800.7] Formal ACHP comments 19

Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Consultation Goal

  • Avoid: Eliminating the adverse effect
  • Minimize: Reducing severity
  • Mitigation
  • Accepting the adverse effect is in public

interest

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Considerations

  • Cost factors and mission requirements
  • Decisions in public interest
  • Keep an open mind
  • The law DOES NOT require that we

preserve all historic properties

  • It DOES require that we consider our

effects to them during project planning

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Memorandum/Programmatic Agreement

  • A binding, legal document
  • Completes Section 106 review
  • Council signs when it has

participated in consultation

  • ALL MOA(s)/PA(s) must be

filed with Council

  • Implement

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Foreclosure [800.9(b)]

  • Failure to comply with Section 106
  • Violation of Federal law
  • Vulnerable to citizen lawsuits
  • Litigation stops mission
  • To be avoided at all costs
  • Potential career stopper for

Commander

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Best Practices

  • Initiate Section 106 review as early as

possible in planning process

  • Complete consultation process before

proceeding with project

– This often is prerequisite to completion of NEPA process

  • Consider compliance needs in annual

budget

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

National Park Service Guidance

  • National Register Bulletins
  • How to nominate properties
  • Boundary definition
  • Documentation examples
  • Secretary of the Interior Standards

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

  • National Historic Preservation Act 1966 (NHPA)
  • National Environmental Policy Act (1969)
  • American Indian Religious Freedom Act 1978 (AIRFA)
  • Archaeological Resources Protection Act 1979 (ARPA)
  • Native American Graves Protection and Repatriation

Act 1990 (NAGPRA)

  • Religious Freedom Restoration Act 1993 (RFRA)
  • E.O. 13007 (Indian Sacred Sites)
  • E.O. 13175 (Consultation with Tribal Governments)

Army Environmental Program Division

Legislative Mandate

Native American Consultation

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

GOVT to GOVT Requirements

  • Government sovereignty
  • Consultation
  • Ensure tribal government rights and

concerns are considered

  • Remove procedural impediments
  • Work cooperatively
  • Design solutions

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Policy/Guidance

  • DOD Policy - American Indian and

Alaskan Native Policy, (June 2008)

  • DODI 4710.02 – Tribal Consultation
  • DODI 4710.03 – Native Hawaiian

Consultation

  • Army Policy (Oct 2012)
  • Army Guidance (July 2014)

AMERICAN INDIAN AND ALASKAN NATIVE POLICY

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Policy Requirements

  • Respect sovereign status
  • Recognize importance and variety of cultures
  • Recognize connection to lands and

resources

  • Maintain confidentiality
  • Support cooperative efforts
  • Liaison
  • Develop maps

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Consultation is always Pre-Decisional

  • Requires Consensus

– On tribal land

  • NHPA
  • NAGPRA

– On agency lands

  • Tribal treaty rights
  • Requires Federal Agency

take into consideration

– Off tribal lands

  • ARPA
  • NHPA
  • NAGPRA
  • AIRFA /EO 13007
  • RFRA
  • Federal Agency makes

decision

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

  • Collections

– Sec 5 Inventories of human remains and funerary objects (NIC) – Sec 6 Summaries of unassociated funerary objects, sacred objects,

  • bjects of cultural patrimony (NIR)

– Future Applicability (NIC/NIR)

  • Post Nov 16, 1990 Discoveries

– Sec 4 Inadvertent Discoveries (POA) – Sec 3 Intentional Excavations (NID)

Army Environmental Program Division

Native American Graves Protection & Repatriation Act (NAGPRA)

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Army Environmental Program Division

Disposition Options No claim, agency retains custody Claimant accepts custody Claimant relinquishes custody

Inadvertent Discoveries v. Intentional Excavations [43 CFR 10.3-10.7]

Initiate Consultation in writing and by phone Lineal descendents T ribes likely to be culturally affiliated On whose aboriginal lands activity will take place Consult Determine custody Discuss agency’s proposed treatment Inadvertent Discoveries [10.4] Intentional Excavations [10.3] Stop Work/Secure site – 30 days or until executed written plan of action Notification – immediately notify CO and Region HPO (phone/written) Written Notification of Project Written Plan of Action Kinds of objects considered NAGPRA cultural items Scientific methods/techniques for removal, recording, analysis, and reports Information used to determine custody Planned disposition Notice of Intended Disposition 30 days prior to transfer Newspaper publication – 2 times, 2 weeks apart - forward to National NAGPRA Information on nature and affiliation of cultural items Solicit further claims to custody

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

NAGPRA updates

  • 43 CFR 10.11
  • for CUI Disposition
  • 43 CFR 10.13 Future Applicability

–for post 1990 acquisitions from non-federal lands or newly discovered collections

  • Summaries (6 months)
  • Inventories (2 years)

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Assistant Chief of Staff for Installation Management Assistant Chief of Staff for Installation Management

Tribal Consultation Best Practices

  • Coordinate compliance with all applicable

statutes

  • Early consultation (ASAP)
  • Sensitivity to cultural values
  • Do NOT get involved in tribal politics
  • Treaty rights
  • https://www.nps.gov/history/tribes/Quick_Guides.htm

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