B. Archeological and Historic Resources
In This Section You Will Learn about:
- SEQR and archeological and historic resources.
(All links to regulations leave DEC website.)
1. What are archeological and historic resources?
The terms archeological and historic resources are also often referred to as cultural resources. These resources may be located above ground, underground or underwater, and have significance in the history, pre-history, architecture or culture of the nation, the State, or local or tribal communities. Examples include:
- buildings (houses, barns, factories, churches, hotels, etc.);
- structures (dams, bridges, canals, aqueducts, lighthouses, etc.);
- districts (group of buildings or structures that have a common basis in history or architecture);
- sites (battlefields, historic forts, prehistoric encampments, shipwrecks, etc.);
- objects (ships, etc.); and
- areas (gorges, parks, etc.).
2. Must archeological and historic resources be considered under SEQR?
Yes. The terms "archeological" and "historic" are specifically included in the definition of the "environment" at Part 617.2(l) as physical conditions potentially affected by a project. The phrase "objects of historic significance" is included in the definition of "environment" at Environmental Conservation Law (ECL) §8-0105(6).
3. How do we evaluate archeological and historic resources under SEQR?
There are potentially five points during a SEQR review where the lead agency should consider archeological and historic resources.
The lead agency must first consider identified historic or archeological resources when classifying the proposed action. If an action would, based on its size and other basic attributes, be classified as Unlisted, but the action would be located, "...wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places, or that has been proposed by the New York State Board on Historic Preservation ... for inclusion in the National Register, or that is listed on the State Register of Historic Places...", it must instead be classified as a Type I action (617.4(b)(9)). Also, the action would not be classified as Type I if it is designed to preserve the facility or site.
Second, both Part 1 and Part 2 of the Full EAF include questions about existing site conditions and any known archeological or historical information relevant to the project area. Additionally, Part 2 of the Short EAF includes a question that asks the lead agency to evaluate potential adverse effects on archeological and cultural resources. The web site of the NYS Office of Parks, Recreation and Historic Preservation (OPRHP) includes maps showing sites listed on the National and State Register of Historic Places and areas of known archeological sensitivity, which can be used as reference material when responding to the archeological and historic questions on the EAF.
Third, as the lead agency develops its determination of significance, that lead agency must assess whether a significant adverse impact may occur to environmental features surrounding the action, including archeological and historic resources (617.7(c)(1)(v)). The lead agency may conclude that additional studies need to be done to fully identify archeological and historic resources and evaluate potential threats to them from the action under review, potentially supporting a positive declaration; or the lead agency may conclude that the proposed action will not adversely affect those archeological and historical resources.
Fourth, if the action receives a positive declaration and one of the environmental factors triggering the declaration is archeological and historic resources, the scope of the DEIS and the FEIS must address potentially significant adverse impacts to these resources, as well as alternatives and mitigation to avoid or minimize those potential impacts.
Finally, where an FEIS has investigated potential adverse impacts to archeological and historic resources, the lead agency must address those potential adverse impacts when developing its SEQR findings. Specifically, the lead agency must articulate how those impacts have been avoided or mitigated to the maximum extent practicable, when weighed and balanced with social, economic and other considerations. The lead agency may attach conditions to its final decision, where appropriate, to ensure that the identified mitigation is implemented.
4. Can a Type II action ever be classified as Unlisted, or elevated to a Type I action, because it contains or involves an archeological or historic resource?
No. When an action has been appropriately classified as Type II, based on its size and other basic attributes, that action cannot be elevated to Unlisted or Type I even if the action involves or adjoins an archeological or historic resource.& For example, the repair or replacement of siding on a house within a historic district would be classified as Type II under SEQR because it meets the standard of maintenance and repair involving no substantial change in an existing structure under 617.5(c)(1). Even without a review under SEQR, however, the activities may still be regulated under local codes. Further, even if an action is classified as Type II, this does not mean that the action is consistent with the historical character of the district nor does it mean that the action is free from other State or local laws affecting archeological or historic sites. It only means that it is not subject to SEQR review.
A lead agency should exercise some caution when proposing to classify an action as Type II as "replacement, rehabilitation or reconstruction of a structure or facility, in kind on the same site" under 617.5(c)(2). Because that Type II item includes language elevating such activities to Type I if those activities meet or exceed any numeric Type I thresholds, the lead agency must compare the full extent of the proposed rehabilitation and reconstruction project to those Type I thresholds. If one or more Type I thresholds would be met or exceeded, then the action must be classified as Type I.
5. What does the phrase "unless the action is designed for the preservation of the facility or site" mean?
Actions designed for the preservation of an archeological or historical resource would include activities undertaken to protect or rehabilitate a historic structure or site, and conducted in accordance with adopted standards and guidelines for archeology and historic preservation.
6. Who makes the decision that the activity is for preservation purposes?
The lead agency makes the determination whether an action is intended for purposes of preservation. That decision should be supported by documentation from a professional in a field of study related to the preservation effort (historic building restoration for buildings, archeology for archeological site-related preservation, etc). A lead agency may also consult the appropriate Field Service Bureau of NYS OPRHP.
7. Must a cultural resources survey be prepared for every project to enable a lead agency to identify possible impacts to archeological and historic resources?
No. The examples that are contained in Part 2 of the Full EAF are intended to rely only on information that is available from existing sources. Before a lead agency requires the preparation of a cultural resources survey, it can search available existing public reports and data to determine if any resources are likely to be impacted. The OPRHP "Online Resources" web site contains maps and data bases which the lead agency can use to help it identify potentially significant resources or determine whether an archeological survey is needed. Additional existing sources of information include but are not limited to:
- NYS Historic Preservation Office (SHPO);
- New York State Museum;
- Department of Anthropology/Archeology at a local college or university;
- Local historical museums and societies; and
- Local historians.
After consulting these resources, the lead agency should be able to ascertain whether or not the project could affect archeological or historic resources. If potential significant adverse impacts to archeological or historic resources are identified during development of the determination of significance, cultural resource surveys may be required as part of the scope of a DEIS, to allow the lead agency to evaluate the importance of a resource, how it may be impacted by the proposed action, and means to avoid or mitigate the potential impacts.
8. Must a lead agency restrict its review of archeological and historic resources to those which have been designated by OPRHP?
No. Although OPRHP, and some other state agencies, have recorded many archeological and historic resources, there may still be resources known only to local collectors, landowners and historians. These local sources may report their findings to the lead agency conducting the SEQR review. In such cases, those archeological and historic resources not included in OPRHP data base should also be identified and evaluated by the lead agency and potential impact to these resources from the project should be evaluated under SEQR.
9. Does identification of potential impacts to an archeological or historic resource always require preparation of an EIS?
Not always. A potentially significant adverse impact to important archeological and historic resources may be sufficient to trigger an EIS. The evaluation of impacts to these resources is similar to the evaluation made for other factors of the environment when a lead agency reaches its determination of significance. When a lead agency completes its assessment of identified archeological or historic resources, it should be able to articulate in the determination of significance whether or not the action as proposed is likely to impact those resources. An EIS would only be required if the lead agency identifies potentially significant unmitigated adverse impacts on the identified resources, and would use the EIS to develop alternatives and mitigation which would avoid or mitigate those impacts. Where the proposed design avoids the identified resources, or provides effective mitigation, no EIS would be required.
10. Do additional requirements apply to evaluation of archeological and historic resources when a state or federal agency is also involved in an action?
Any State agency that is involved in a project that may affect archeological or historic resources must comply with the New York State Historic Preservation Act of 1980 ("SHPA"; Chapter 354 of the New York State Office of Parks, Recreation and Historic Preservation Law, Section 14.09). In consultation with OPRHP, the State agency is required to identify cultural resources that may be impacted by an action and seek ways to avoid, minimize or mitigate these impacts.
The lead agency and involved State agencies should share information about impacts to archeological and historic resources, but the lead agency is responsible for determining impacts to these resources under SEQR. It cannot delay the SEQR review without consent of the applicant (project sponsor) and any other involved agencies. If the State agency completes the SHPA review before the lead agency completes the SEQR review, then the results of the state agency's SHPA consultation should be used by the lead agency in evaluating impacts under SEQR.
If a federal agency is reviewing, funding or undertaking the project, that federal agency must meet the requirements of Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470). Section 106 also requires a formal consultation with SHPA to identify measures that the federal agency must take to avoid or protect the identified cultural resources. While federal agencies are not formally involved in SEQR reviews, the results of a Section 106 consultation, if available, may be used by a SEQR lead agency to support its assessment of potential impacts to cultural resources.
11. Where can I get more information on the New York State Historic Preservation Act?
For more information contact:
New York State Office of Parks, Recreation and Historic Preservation (OPRHP)
New York State Historic Preservation Office
Peebles Island Resource Center
P.O. Box 189
Waterford, NY 12188-0189
Additionally, OPRHP has advised, "We are pleased to announce that our data is now directly accessible to all users via the internet. Consequently, this office will discontinue the preparation of written responses to basic SEQR and NEPA data inquires, i.e. requests for information available on the Internet. We will, however, continue to respond to municipal officials requesting written evaluations of historic and archeological resources and recommendations for survey, treatment or mitigation in supplementing local environmental assessments."
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