41. What information is needed to decide on treatment options?

Consulting about possible options to resolve adverse effects should begin with basic information about the eligible or listed archaeological site and the nature of the federal undertaking. At this point in consultation, the federal agency has already determined the property is eligible for listing or is listed on the National Register. This basic National Register information—the property’s boundaries, its integrity, all of its qualifying characteristics, and period(s) of significance—is critical to evaluate the appropriateness of measures proposed to avoid, minimize, or mitigate the adverse effects.

In many cases, federal agencies will be bound by other federal, tribal, state, or local laws, such as the Native American Graves Protection and Repatriation Act (NAGPRA—see www.cr.nps.gov/nagpra/) or state burial laws, that may dictate how the listed or eligible archaeological sites, especially those that contain human remains or funerary objects, are treated. The federal agency must identify and follow applicable laws and implement any prescribed provisions.  

 

42. When is data recovery the appropriate treatment?

One of the strengths of the Section 106 consultation process is that there is no predetermined outcome. This means that a range of solutions is usually available for consideration by consulting parties. Contrary to the view held by some Section 106 practitioners, data recovery is not required by law or regulation. It is, though, the most commonly agreed-upon measure to mitigate adverse effects to archaeological sites eligible or listed under Criterion D, as it preserves important information that will otherwise be lost.

Under the ACHP’s Section 106 regulations, an adverse effect occurs when: an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association [36 CFR § 800.5(a)(1)].

When an undertaking will diminish the historic property’s integrity by destroying all or part of it, information contained in the property will be lost. Data recovery preserves at least some of that information. Thus, if the site cannot be avoided and preserved in place, and the federal agency determines it is eligible for the important information it contains and should be retrieved, some agreed-upon level of data recovery, analysis, curation, and reporting is appropriate in order to preserve that important information for the benefit of future generations.  

 

43. What issues should be considered when consulting about mitigation?

An important goal of Section 106 consultation to resolve adverse effects is to identify an outcome that represents the broader public interest. Key issues in determining appropriate resolution of adverse effects include:

  • What is in the public interest?
  • What are the benefits to, or concerns of, the consulting parties, those they represent, and those who ascribe importance and value to the property?
  • If the proposed mitigation is designed to advance our knowledge about the past, how will this knowledge be provided to the public, to schools, to tribes or NHOs, and to professional archaeologists?
  • Will it enhance the preservation and management of listed or eligible archaeological sites in a region?

Related questions that should be considered by the federal agency and consulting parties include the following:

Why is the affected listed or eligible archaeological site important? Listed or eligible archaeological sites can be important for, among other reasons, their scientific or educational potential, their nature as traditional or sacred sites, or their potential as heritage tourism assets. Typically, archaeological sites are considered eligible for listing under Criterion D (they contain important information), but they are sometimes eligible under other criteria. Consideration of these various aspects of a site’s importance in the consultation process creates opportunities for alternative treatments, in keeping with the concerns of the consulting parties.

How is the importance of one historic property judged relative to that of other properties? When making decisions about the value of one archaeological site versus another, it is important to consider relative potentials of each to yield important information; significant gaps in knowledge that each property can fill; the National Register criteria represented by each site; and whether one property embodies multiple significance, to several groups, thus perhaps giving it a higher preservation priority. Federal, tribal, and state management or preservation plans may provide information on priority lists of research questions, important information gaps, archaeological site types, and other information that can help with this comparative analysis.

Does the affected property have potential to contain human remains? The potential for an archaeological site to contain human remains or funerary objects that will be disturbed should be evaluated before alternative mitigation can be considered. It is the ACHP’s policy that human remains should not be knowingly disturbed unless absolutely necessary. However, if they must be disturbed, the remains should be removed carefully, respectfully, and in a manner developed in consultation with others as specified in the ACHP’s regulations (See ACHP’s “Policy Statement Regarding Treatment of Burial Sites, Human Remains, and Funerary Objects”).  

 

44. What is “alternative” or “creative” mitigation?

These terms refer to alternatives to archaeological data recovery as mitigation for an undertaking’s adverse effects. Such approaches can either be implemented alone or as part of a broader mitigation package. Examples of such alternatives may include:

  • preserving selected eligible archaeological sites and incorporating them into heritage tourism plans while allowing others to be lost;
  • burying sites under fill or incorporating them into the undertaking;
  • using resources to develop syntheses of existing information on a region or area instead of, or in addition to, using them on data recovery;
  • use of barriers to route traffic away from eligible archaeological sites;
  • using resources to develop virtual or Web-based reports or educational media that otherwise would not be produced.

Another example of these alternatives is archaeological “mitigation banking.” This term refers to the acquisition and preservation of archaeological sites away from the project area in return for doing little or no direct mitigation on sites within the area of potential effects.

 This concept of “alternative” or “creative” mitigation is consistent with the definition of “mitigation” as used in the National Environmental Policy Act regulations of the Council on Environmental Quality [Section 1508.20(c)-(e)], where it includes:

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and

(e) Compensating for the impact by replacing or providing substitute resources or environments (i.e., “off-site mitigation”).

 

45. Are there advantages to considering alternative mitigation?

There is no prohibition against alternative treatments in the ACHP’s Section 106 regulations, and the law does not prescribe any specific measures to resolve adverse effects. The regulations [36 CFR § 800.6(a)] leave development of these measures to the federal agency consulting with other parties, calling for them to “develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.”

Recovery of an eligible or listed archaeological site’s important information, and/or redirecting resources toward other preservation goals identified as more critical, is consistent with the purposes of the broader federal historic preservation program as set out in Sections 1 and 2 of the National Historic Preservation Act (NHPA). Other sections of the NHPA and guidance call for mitigation but are not specific. Section 110(b) of the NHPA calls for federal agencies to make “appropriate records … for future use and reference.” This is reiterated in Standard 6 of the “Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs”, which calls for agencies to “provide for appropriate recording of the historic property.” Data recovery, however, is not the only way to construct a record when archaeological properties will be adversely affected by an undertaking.

The ACHP supports consideration of alternative mitigation and notes that: Appropriate treatments for affected archaeological sites, or portions of archaeological sites, may include active preservation in place for future study or other use, recovery or partial recovery of archaeological data, public interpretive display, or any combination of these and other measures (From the ACHP’s “Recommended Approach for Consultation on Recovery of Significant Information from Archeological Sites”).

In reaching decisions about appropriate treatment measures, federal agencies should weigh a variety of factors, including significance of the historic property, its value and to whom, and associated costs and project schedules. As mitigation decisions reached through consultation represent the broader public interest, they should be considered appropriate so long as they are legal, feasible, and practical.

By considering alternatives to data recovery, federal agencies can address how the community or the general public best benefits from the expenditure of public funds for preservation treatments. The public may derive greater benefit from a variety of data recovery alternatives or a combination of more limited data recovery and exhibits on excavation, brochures, site tours, public lectures, Web sites, documentary videos, and history modules for use in schools. Using these means to achieve broader public involvement can lead to increased appreciation of the past and a greater willingness to expend public funds in the pursuit of preservation goals.  

 

​​​​​​​46. How can federal agencies find out about appropriate treatment options and alternatives?

The ACHP encourages federal agencies, SHPOs/THPOs, Indian tribes, and NHOs, to develop priority lists of preservation strategies, mitigation plans, or programs for ready consideration in the consultation process. Many land managing agencies have preservation or management plans that contain lists of priority activities that could be implemented with sufficient resources. SHPOs have state preservation plans that set forth what is known about the history of their state, provide historic contexts for making decisions about significance, and identify gaps in archaeological knowledge. Some THPOs and tribes have, or are developing, preservation plans for tribal lands that may be considered in consultation to resolve adverse effects. These kinds of plans, particularly those developed in consultation with other preservation stakeholders, are important to consider in providing a context for making site-specific treatment decisions.