Beware of Notices From the Bureau for Historic Preservation

February 2014Articles In the Zone

Oh no! Now what? After spending two years resolving your zoning issues and spending over $100,000 to prepare your subdivision/land development plans, you received a notice from the Pennsylvania Bureau for Historic Preservation (the Bureau). The Bureau wants you to complete a historical or archeological survey of your property. The Planning Module approval, the NPDES permit, the PennDOT HOP and the DEP general permits were bad enough, but now another hurdle? Maybe not. Your project might be exempt from the Bureau’s requirements.

The Bureau (which is a part of the Pennsylvania Historical and Museum Commission) reviews projects in accordance with Section 106 of the National Historic Preservation Act of 1966 and the regulations of the Advisory Council on Historic Preservation, and under the authority of the Environmental Rights Amendment of the Pennsylvania Constitution and the Pennsylvania History Code. These requirements include consideration of projects’ potential effects upon both historic and archeological resources.

Because the federal and state legal mandates apply to federal and state agencies, the Bureau does not have the authority to require an applicant to complete an archeological survey or historical study if there is no federal involvement in or state funding of the project. In addition, numerous Pennsylvania Department of Environmental Protection (DEP) permits are exempt from the requirements of the cultural resource mandates, including the NPDES General Permit for Storm Water Discharges Associated with Construction Activities, NPDES Permit for Sewage Discharge, and General Water Quality Management Permits. You can access the list of exempt DEP permits, which was prepared by the DEP and Bureau, by clicking here .

If there is federal involvement or state funding of the project or the project requires a DEP permit that is not exempt from the cultural resource mandates, then the Bureau has the authority to require an agency to conduct an archaeological or architectural survey; however, the agency may transfer its responsibilities to the applicant. For instance, applicants for federal permits may be required to provide information regarding the project directly to the Bureau and to complete the step of identifying historical properties in consultation with the Bureau.

The DEP has prepared a document titled “Implementation of the History Code: Policy and Procedures,” which became effective in March 2002 (the DEP Guidance Document). The DEP Guidance Document does not have the weight of an adjudication or regulation. Rather, it was created merely to establish procedures for DEP plan approvals and permit reviews in order to provide the Bureau with the opportunity to review activities undertaken with DEP’s approval for their possible impact on significant historical and archaeological resources.

The DEP Guidance Document provides that DEP will include a Cultural Resource Notice form with its permit or plan approval application packages to project applicants during the Planning Module process. The Cultural Resource Notice requires that certain information be supplied to the Bureau and DEP, including the name of the specific DEP permit or approval requested, any anticipated federal permits and any government funding sources. The project applicant is then responsible for completing the Cultural Resource Notice and sending it to the Bureau by certified mail, return receipt requested. Once the applicant receives the return receipt, the applicant attaches it to the Cultural Resource Notice and submits the information to DEP as part of the permit or plan approval application.

When the Bureau receives the Cultural Resource Notice from the project applicant, it may determine that (1) the proposed activity affects a structure that is an historic resource listed on the National Register of Historic Places, or (2) it considers a structure on the site of the proposed activity to be eligible for listing on the National Register of Historic Places. In making this judgment, the Bureau uses criteria of the National Register of Historic Places determinants of significance. It is the Bureau’s responsibility to make its determination and, where the applicant’s proposed activity could impact a historic structure, work with the applicant in the creation of a mitigation plan to protect the structure.

Thus, federal and state agencies must meet their responsibilities under the various federal and state legal mandates by working with the Bureau in identifying all cultural resources that may be affected by their actions, determining the National Register eligibility of those resources that will be affected, and considering ways to mitigate or avoid the effects of their action on National Register properties. If your project has federal involvement or state funding or requires a DEP permit that is not on the list of exempt permits, then the Bureau can require you to undertake certain mitigation efforts.

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