Cultural resources and local government transportation projects

BY ALAN FORSBERG, P.E., RETIRED BLUE EARTH COUNTY ENGINEER

Why do we protect and preserve cultural resources, both archaeological sites and historic structures, with our local government transportation projects? It is the right thing to do—it honors our heritage, provides continuity with the past, and increases our knowledge base—and learning from the past influences our future. For some cultures, their history is part of their identity. Protection is also required by state and federal law.

People have lived in Minnesota for 13,000 years, leaving behind an extensive archaeological record, often in places protected from the weather and having access to water, woods, and animals for food. In more recent times, historical structures such as bridges, buildings, and highways may also be considered historic.

Cultural resources review attempts to balance the transportation needs of a modern society with protection and preservation of archaeological sites and historic structures. This is a complex process for our local transportation projects depending on the funding sources and permits required.

Quick look at federal and state laws

Under federal law, Section 106 of the National Preservation Act of 1966 applies when federal funds are used or a federal permit or license is required.

State laws apply to state agencies and local governments when carrying out government construction projects or when public land they control may be impacted by construction or development:

• MS 138 661–669 is the Minnesota Historic Sites Act. It requires state agencies and local governments to consult with the State Historic Preservation Office (SHPO) prior to bidding if their project may impact a historic property (including an archaeological site) listed on the National or State Register of Historic Places.
• MS 307.08 subd. 9–10 is the Minnesota Private Cemeteries Act. It requires state agencies and local governments to submit construction plans for review by the Office of the State Archaeologist (OSA) and Minnesota Indian Affairs Council if the project may impact known or suspected burials or cemeteries on public land under their control.
• MS 138.31–42 is the Minnesota Field Archaeology Act. It requires state agencies and local governments to submit construction plans to the SHPO and OSA when known or suspected significant archaeological or historic sites may be impacted on public land under their control.

How state and federal laws relate to local projects

To learn more about how these laws relate to local transportation projects, I visited with a State Aid district engineer, State Aid federal projects engineer, MnDOT Cultural Resources Unit (CRU) staff, and representatives from a regional center and a rural county with recent projects affecting cultural resources. The points below provide only a broad overview and discuss only the cultural resource implications of a project. Many other regulatory requirements may apply, such as wetlands and endangered species.

It is complicated. For federalized projects, a number of agencies could be involved: Corps of Engineers (COE), Federal Highway Administration (FHWA), Fish and Wildlife Service (FWS), National Park Service (NPS), MnDOT CRU, SHPO, Tribal Nations, and the OSA.

Fortunately, several years ago, and recently updated, a Programmatic Agreement was executed providing one of these agencies could be designated the lead. The lead agency is determined by funding source and permits required. The lead would be responsible for reviewing and evaluating any effects to historic properties and consulting with SHPO, Tribal Nations, and the public.

For FHWA-funded local government projects, MnDOT Cultural Resources Unit is the lead and aids the local government with the Section 106 review on FHWA’s behalf. MnDOT CRU reviews projects with its staff of professionals and may use the assistance of an approved consultant. If a consultant study is required, 80 percent of the cost may be available through MnDOT. MnDOT State Aid will not approve the plan or project funding until a finding letter from MnDOT CRU is received. When a historic property will be affected, a letter from SHPO to MnDOT CRU is also required.

For projects requiring a federal permit but having no federal funding, the local government applies for the permit, such as a COE permit, and the federal permitting agency is responsible for the Section 106 review. The local government may be required to conduct studies to assist in the review.

For state and locally funded projects with no federal funds or permits required, local governments are responsible for complying with state cultural resource statutes. Essentially, if there are no human burials or sites on the federal and state lists of historic places, no cultural resource review is required. For assis- tance in determining this or to increase your confidence in a decision, contact SHPO and OSA. Consultation will also reduce the risk of encountering a historic property during construction and resulting project delays. If a property is listed on the National Register of Historic Places, the local government would need to conduct a review under state statutes.

Recent examples

For examples, I interviewed a regional center county and a rural county with recent cultural resource experiences.

The regional county had a road reconstruction project with some new alignment, grading, and paving. There were no federal funds, but a federal COE permit was needed. State turnback and local funds were used. The county was required to perform a cultural resource review for the COE permit. A consultant hired by the county performed shovel tests and then a test pit. Burned and charred animal bones and a few other items were found. The plan was modified to avoid some excavation with additional fill sections. The COE consulted with SHPO, Tribal Nations, and the public. The COE permit was issued, and construction proceeded. The cultural resource review took about two years, with an additional cost of more than $50,000 for consultants.

The rural county had a bridge replacement project over a major river. The existing bridge was eligible for the National Register of Historic Places. Federal funds were used, and a COE permit was required. MnDOT CRU reviewed the project on FHWA and COE’s behalf. The county retained a consultant, using MnDOT cost-sharing funds, to evaluate alternatives to rehabilitate the bridge to meet modern traffic needs, as required by FHWA. It was determined rehabilitation was not feasible.

The county then advertised the bridge for reuse at another location. A metro county adopted it for a trail bridge. MnDOT CRU consulted with SHPO, Tribal Nations, and the public. Following this review, a letter to proceed was issued to State Aid. The replacement bridge is currently under construction. The cultural review took about five years, with over $50,000 in consultant costs, for which the state provided 80 percent funding.

Summary

State and federal agencies have worked hard to simplify and expedite a complex cultural review process. The Programmatic Agreement and MnDOT Cultural Resources Unit are very helpful. Still, it remains a challenge to balance the transportation need with protection and preservation of the historic resources in an expeditious and efficient way. If cultural resources are affected, the local government should anticipate that additional time for consultant studies and consultation—and additional funding—will be needed.

What types of properties can be eligible for the National Register of Historic Places?

• Buildings—created mainly to shelter human activity
• Structures—such as a bridge, tunnel, or highway
• Sites—location of a significant event, precontact or historic occupation or activity, or building or structure no longer standing where the location itself possess historic, cultural, or archaeological value.
• Objects—smaller constructions that may be artistic in nature, such as signs, sculptures, or monuments
• Districts—a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united historically or aesthetically by plan or physical development

—FHWA Section 106 tutorial

Learn more:

• MnDOT Cultural Resources Unit
• MnDOT State Aid
• Minnesota Cultural Resource statutes: Search for the three laws listed above
• FHWA Environmental Review Toolkit, Section 106 tutorial