November 13, 2000
POWERS OF THE CONNECTICUT HISTORICAL COMMISSION
By: John Moran, Research Analyst
You asked for a description of the powers of the Connecticut Historical Commission (CHC) including whether it has the authority to request a “reconnaissance” survey be performed to determine the archaeological resources on a site before a proposed development can move forward. You wanted to know on what grounds the commission can request such a survey in order to determine the presence of artifacts and whether the developer can appeal the request.
The CHC is authorized under state statutes and the National Historic Preservation Act (NHPA) of 1966. The legislature created the CHC to, among other things, study, investigate, and encourage the preservation of historic resources, including archaeological sites (CGS § 10-321) (for detailed description see attached Office of Legislative Research report 97-R-0076). The CHC is not explicitly authorized to order a “reconnaissance” survey, but its role under NHPA can trigger a federal agency to make such a request.
The governor designated the CHC director to act as the state historic preservation officer (SHPO) under the NHPA. In that capacity, the CHC is called in to advise federal agencies contemplating an action (36 CFR 800.2(c)(1)). For example, when the Army Corps of Engineers considers a request for a wetlands fill permit in Connecticut, it contacts the CHC. At that point the CHC may recommend the Army Corps request a survey be performed to determine a site's archaeological resources. In this scenario, the Army Corps is actually requiring the survey under its NHPA obligation as a federal agency. While the CHC does not have the power to require a survey, as SHPO its recommendations are taken seriously by federal agencies. An Army Corps representative indicated the corps will not issue a permit before obtaining the requested survey.
There is no appeals process from the CHC recommending a survey be performed. But, both the CHC and the Army Corps indicate that an archaeologist retained to perform such a survey has some professional latitude in the scope of the survey. Also, the Army Corps prefers to be given the opportunity to approve the scope of work for the survey in order to insure it will fulfill NHPA requirements. The CHC notes that if a proposed use of private land does not trigger federal NHPA involvement, then the CHC would not be asked to comment.
CHC'S ROLE UNDER THE NATIONAL HISTORIC PRESERVATION ACT (NHPA)
Under CGS § 10-321(b)(13) the CHC may “review planned state and federal actions to determine their impact on historic structures and landmarks….” Historic structures and landmarks are defined to include “sacred sites and archaeological sites.” The NHPA allows states to designate a SHPO. It requires federal agencies considering an action to notify and “initiate consultation” with the SHPO (36 CFR 800.2 and 800.3). Under the NHPA regulations the legal responsibility for following the NHPA process rests with the federal agency considering an action, such as approving a permit. (This is known as the section 106 process, named for the section of the original act.)
The CHC has no authority in a wetlands permit situation other than as an advisor, according to Joanne M. Barry, senior project manager for the Army Corps of Engineers. “But based on their advice we may request a field survey,” she said. Barry indicated the Army Corps will not issue a wetlands permit until it has received and reviewed any material recommended by the SHPO. Connecticut SHPO and CHC Director Jack Shannahan stated the CHC reviews about 1,200 projects a year under section 106.
When recommending a reconnaissance survey that includes digging samples from the land, CHC staff archaeologist David A. Poirier said the CHC uses established archaeological guidelines. These guidelines include (1) proximity to known archaeological sites, and (2) whether the topography makes a location a likely host for archaeological resources. He noted an archaeologist can often narrow the scope of a survey simply by walking the site and ruling out unsuitable areas because the grade is too steep, the earth has already been disturbed, or other considerations.
The CHC typically asks to review reports generated from field surveys. It then advises the federal agency in question whether the proposed federal action will hurt any historical resources.
BACKGROUND ON NHPA
Section 106 of the NHPA requires federal agencies to “take into account the effects of their undertakings on historic properties…” (36 CFR 800.1). The goal is to avoid, minimize, or mitigate any negative effects on historic properties.
As part of this process the role of SHPOs and tribal historic preservation officers are recognized in federal regulations as consulting parties that can help properly inform a federal agency about potential historic properties. The regulations also recognize the potential role for a number of other consulting parties including local, state, and federal agencies, plus private individuals and organizations.
Barry noted that in the course of a wetlands permit review, for example, the Army Corps of Engineers will notify the federal Environmental Protection Agency, the National Fish and Wildlife Service, the state Department of Environmental Protection and the CHC.