EIS Analyst's Tips

Scoping and consultation

In scoping your environmental impact statement (EIS), you need to think about all the kinds of cultural resources that may be affected. Are there likely to be historic buildings? Archeological sites? Culturally important landscapes? How about Native American religious practices? Community cultural values – like the significance the community ascribes to a given vista down a valley or the importance of fishing in the local reservoir to the African-American neighborhood? Of course, you probably will not know at the outset what kinds of resources will be affected, but there are ways to find out what kinds of things you may need to be concerned about.

What is most important is to remember that cultural resources are important to people for cultural reasons, and cultural concerns are in people's heads, so you have to talk to people: regulatory bodies like state, tribal, and local historic preservation agencies; neighborhood groups; academic historians, archeologists, folklife specialists, cultural anthropologists, and sociologists. And you need to meet with people where they live, in their communities.

In holding public meetings as part of scoping, first remember that such meetings are only a part of the scoping process; they are not the be-all and end-all. There are some things you will never find out in a public meeting – about sensitive religious matters among indigenous groups, for example, or about environmental concerns that may be of questionable legality, like the gathering of some plants in a National Forest. You also need to remember that the purposes of a scoping meeting are both to inform and to get information. Neither purpose is usually served very well by holding a formal public hearing. Consider alternatives like interactive workshops. Finally, remember that culture can throw up barriers to communication – language barriers, economic barriers, and barriers based on societal perceptions. In some cultures the young should not talk in the presence of the old. In some cultures some topics are not appropriate for discussion in mixed-sex groups. Some kinds of cultural information can be passed only to one's relatives. If people work at regular jobs they probably cannot come to meetings during the work day. If they do not speak English as their first language, you are going to need to provide for translation.

All the cultural resource laws and types

Be sure to consider potential impacts on all types of cultural resources, in accordance with all the pertinent laws. Typically these will include such factors as:

NHPA (Section 106), NAGPRA, ARPA, ADPA, and FRA have specific regulatory processes that must be followed, if they apply. You should make sure that these are addressed in the EA analysis.

Beware of professional bias

Many consulting firms that do cultural management work are dominated by archeologists; others are run by architectural historians. Without meaning to, these specialists may tend to focus only on those types of resources with which they are comfortable. When this happens, other resource types and impacts may go unanalyzed and present unresolved problems late in the planning process; this can be expensive and time consuming. Make sure your cultural resource people are prepared to address the whole range of resources and impacts that are likely to be of concern.

Coordinating Section 106 review

Of all the cultural resource authorities, Section 106 of NHPA has the most developed, rigorous, and heavily litigated review process, set forth in the Section 106 regulations of the Advisory Council on Historic Preservation (ACHP). Generally speaking, you should try to coordinate EIS preparation and Section 106 review as follows:

  • When scoping the EIS, initiate the Section 106 process by determining whether the project requires Section 106 review, and if it does, by consulting with the State and/or Tribal Historic Preservation Officer (SHPO and/or THPO) and other concerned parties, establishing the area of potential effect (APE) and establishing the scope of the Section 106 identification effort;
     
  • As part of environmental analysis, identify historic properties and effects within the APE;
     
  • Report the potential effects in the draft EIS (DEIS);
     
  • Use the DEIS as a documentary base for further consultation about how to resolve any effects that are adverse;
     
  • Consider the results of the Section 106 process in establishing the environmentally preferable alternative and in developing possible mitigation measures, as well as to inform decisionmaking about the action under review.

Include the results of Section 106 review in the final EIS (FEIS). Make whatever is agreed upon under Section 106 – usually in a memorandum of agreement (MOA) or other agreement document – or the agency response to ACHP comment a part of the Record of Decision (ROD), by inclusion or reference.

Don't define the APE too narrowly

Both NEPA and Section 106 require considering all kinds of impacts – direct, indirect, and cumulative. In defining the area of potential effects for Section 106 purposes, you need to consider all these kinds of effects, just as you do in scoping the EIS. Consider not only physical impacts like demolishing buildings or digging in the ground, but also visual, auditory, social, and land use effects; impacts on community cultural integrity; impacts on cultural uses of the biophysical environment; and so on. Be sure to include the areas subject to effect by all alternatives.

Don't "defer"

It is not uncommon for agencies to "defer" Section 106 review until after NEPA analysis has been completed and a decision made on a preferred alternative. Thus a Finding of No Significant Impact (FONSI) may say something like "all alternatives have the potential for some (undefined) level of impact on historic properties, but this impact will be addressed and mitigated under Section 106."

There are two problems with such deferral. One is that it causes a whole class of environmental impacts – impacts on historic properties – to be ignored in deciding among alternatives; this is inconsistent with NEPA. A second problem is that it causes historic properties to be considered late in planning, when options for mitigation may be greatly reduced and costly conflicts become inevitable.

Agencies often defer Section 106 review because they find the process to be to expensive or time consuming, or impossible to do early in planning when the agency may not have access to the affected lands. Under such circumstances, the agency may not be able to do the detailed surveys and eligibility studies that Section 106 review is ordinarily understood to require.

However, the Section 106 regulations provide for Section 106 review to be "phased," so at an early stage of planning, during DEIS preparation, you might do initial background studies, sample field studies, and consultation with concerned parties to develop enough information to rank alternatives and get a feeling for what more might need to be done. You can then consult further about what else to do based on this general information, and stipulate in the EIS what will be done at subsequent phases in planning with respect to each possible alternative to minimize the likelihood of impacts, refine knowledge of such impacts, and mitigate them.

Consult broadly

Be sure to consult with cultural stakeholders in preparing the EIS, and document the consultation. "Consultation" means a back-and-forth exchange of ideas and concerns, and efforts to address these concerns, through agreement where possible (36 CFR 800.16(f)). The EIS should document compliance with the consultation requirements of Section 106 and other specific authorities (e.g., NAGPRA) where they apply. To be consistent with the broader requirements of NEPA the EIS should also document consultation with people and groups that may value the environment for cultural reasons not directly related to specific extra-NEPA authorities. For example, do not neglect communities whose social institutions or cultural uses of the environment may be impacted, even if these institutions are not related to historic properties and the communities are not Native American, low-income, or minority groups.

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