Contractual clauses to help limit the impacts of the Discovery of Historical Structures or Items during Construction
Over the last sixty years, significant legislation has been enacted with the underlying goal of preserving our historic heritage. Following the passage of the National Historic Preservation Act in 1966 at the federal level, many states and tribes enacted state and tribal level legislation to create the position of State Historic Preservation Officer (SHPO) or the Tribal Historic Preservation Officer (THPO) as contemplated by NHPA. The SHPO or THPO is responsible for administering the state or tribal level program and coordinating with a number of federal agencies consistent with the responsibilities established under NHPA. While many potential statutes are implicated by discovery of historical items, this post focuses on one portion of the NHPA.
One of the significant portions of NHPA is the review contemplated by Section 106 of NHPA (often referred to as a Section 106 review). This review is often part of the planning process on any federal project (typically during the reviews required by the National Environmental Protection Act), but it is also required on any project which receives federal funding – meaning that a project funded in part by federal grants or federal loans will also need to comply with the Section 106 requirement.
When triggered, a Section 106 review is a requirement during the planning process, and the related regulations are focused on evaluation, coordination, and planning during that phase. In very broad terms, Section 106 contemplates identification of historic properties, analysis of whether they will be adversely effected by the project, and consideration of alternatives or other methods of avoiding, minimizing, or mitigating any adverse effect.
Section 106 contains several key definitions that expand the review process significantly. The first is Section 106’s broad reach. The historic properties analyzed under Section 106 extend beyond just those historic structures that are included on the National Register they also incorporate those that are eligible for inclusion. One of the first steps (after identification) is analysis. If a structure is deemed eligible, even if it is not a “recognized” historic structure, the potential for adverse effects must be evaluated. Of next significance is the scope of adverse effect, which includes more than just the obvious adverse effect of demolition, but also extends to anything that would “diminish the integrity of the Property’s location, design, setting, materials, workmanship, feeling, or association.” This means that alterations to the surrounding property – including the viewshed or the audio experience – can create an adverse effect, even if the structure itself is not touched.
If no finding of adverse effect is issued by the agency official, and no objection is received within the requisite timeframes, the project can move forward. If the agency official determines there is an adverse effect, then continued consultation is necessary to consider alternatives or modifications that can “avoid, minimize, or mitigate” the adverse effects.
When adverse effects are recognized during the planning process, they are easier to manage. Although they may significantly alter the project, considering these evaluations during the planning process maximizes the options available. Presuming a Memorandum of Agreement (or a programmatic agreement when discovery is contemplated) is reached between the various agencies, the agreement(s) may address the process if additional items are discovered during the project. These provisions help mitigate the risks associated with discovery during the project. (more…)