Surveys Unlimited Research Associates, Inc.

The Permit Process: Section 106

When to hire an archaeologist

Contract archaeology investigations, known as cultural resources studies, usually fall under Section 106 of the National Historic Preservation Act of 1966. The Clean Water Act also requires cultural resources clearance, under Section 404, which automatically triggers Section 106 of the NHPA. Finally, the National Environmental Policy Act (NEPA) also requires a consideration of archaeological/historic properties.

Cultural resources studies fall into several classifications. Initial reviews of extant literature are usually all that are required for Environmental Assessments (EAs). The more in-depth Environmental Impact Statement, however, generally requires a closer look at the archaeological potential of a given study area.

The decision whether to carry out archaeological studies, however, is usually made by the lead federal agency, which is tasked with ensuring that Section 106 requirements are met. In practice, this means a review of the application by the coordinate state official, the State Historic Preservation Officer (SHPO). In Louisiana, SHPO delegates this function to the Division of Archaeology, of the Department of Culture, Recreation and Tourism. Thus, a developer seeking a wetlands permit will have his application reviewed by the Corps of Engineers, which will refer the cultural resources aspect of the application to the SHPO. From the SHPO review will come the decision to either require an archaeological (i.e., cultural resources) study or not.

Reasons for requiring such studies are varied, but generally where archaeological sites occur in or near the project area, or the project area is so extensive and covers such archaeologically promising territory that archaeological sites might reasonably be expected to occur, a cultural resources survey will be required.

Initially, when a study is required, the SHPO will usually ask that a Phase I survey be conducted. This is a simple, on-the-ground examination of the study area with the aim of detecting any significant archaeological sites. It is important to note that not all archaeological sites are significant; most are not. The finding of a few stone flakes or perhaps a single piece of broken pottery in a location does not usually indicate a significant site. In such cases, the results of the investigation are written up in a report, submitted to the SHPO’s office, and if the SHPO agrees with the archaeologist, the permit is issued (provided there are not other objections unrelated to archaeology, such as rare and endangered species).

 

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Where the archaeological survey (Phase I study) finds an archaeological site that may be significant (i.e., the site may be eligible for listing on the National Register of Historic Places), the permit applicant has the option of either redesigning the project so as to avoid the site in question, or of commissioning the archaeologist to carry out more extensive work, called Phase II testing for National Register significance. Note, however, that this Phase II testing is only done with the concurrence of the SHPO; this is a check that protects archaeologists and their clients by requiring an independent opinion before further money is spent on the cultural resources procedure.

Where the Phase II process determines that the site investigated is not significant, the project is allowed to proceed as originally planned. When the SHPO feels, however, that the archaeological site is sufficiently important that it qualifies for the National Register of Historic Places under at least one of four criteria specified by the National Park Service, and where the archaeological site or structure has not been seriously disturbed, then the SHPO recommends (with the concurrence of the Advisory Council on Historic Preservation) that either the site be avoided or that a detailed enough archaeological excavation be carried out that the most important data from the site are saved This is called Phase III data recovery and the corresponding process when a building or engineering structure is involved is called HABS or HAER recordation.

In summary, when archaeological survey (Phase I) is required, in most cases no further work is required because nothing significant is found. In a minority of cases, though, further work is required because the project cannot be redesigned to avoid the archaeological site or the historic building. In only a very small number of cases, however, is the process of data recovery (Phase III) called for, and the developer always has the option of redesign so as to avoid the archaeologically sensitive area.

The job of the archaeological consultant is to advise the client honestly concerning the nature of the archaeological resources (if any) in the project area and then, if there are such resources present, to work with the client in finding a means to satisfy federal requirements in a timely fashion. It is very rare for archaeological considerations to halt a project; even in the case of human burials, limited redesign and/or excavation under permit can often avoid or mitigate the problem.