Monday, September 14, 2009

Flash! HUD Finds Herd Behavior Among Archaeological Sites! Scientists Stunned!

Back in May, the U.S. Department of Housing and Urban Development (HUD) put out a “fact sheet” on when to do archaeological surveys under Section 106 of the National Historic Preservation Act and related authorities. Here’s what it says:


HUD offers the following guidance on when to do professional archaeological field investigations. It is applicable to both Part 50 and Part 58 programs. It meets the “reasonable and good faith effort” requirement to identify historic properties, per 36 CFR § 800.4(b).

Archaeological field investigations and related work should be approved only when HUD or the Responsible Entity (RE) is persuaded by authoritative sources of information that there is a “likely” (§ 800.4(b)(1)) presence of National Register-eligible or -listed properties within the project site and that the project may affect National Register resources.

Authoritative sources of information include, but are not limited to, reports, studies, surveys, predictive models, National Register data, and/or tribal input. These data must demonstrate that the project site contains or is reasonably adjacent to archaeological sites that meet National Register criteria.

The SHPO/THPO and other qualified persons may provide such information. The information should indicate a close and direct relationship between such previously discovered sites and the project site. It should also indicate the likelihood that National Register resources will be affected. Archaeological field investigation in such cases would help determine the presence of resources on site and provide the basis for establishing their significance and the project effects on them.

For urban areas, it is reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site.

In the case of projects for new developments in areas not previously developed or disturbed, a somewhat more distant site or ring of sites may be considered as relevant to the project site. But still, in this scenario, HUD or the RE must be persuaded that documented archaeology sites outside the APE are reasonably close enough to the project site to establish a likely relationship and so warrant a professional field investigation on the project site.

HUD or the RE should generally not honor a request for a professional archaeological field investigation without specific justification or solely on grounds that previous surveys have never been conducted in the area. HUD or the RE may turn down such requests as an unjustifiable public expense, particularly where private or
non-federal lands are involved.

This guidance is supported further by the Advisory Council on Historic Preservation’s 2007 Policy Statement on Affordable Housing and Historic Preservation (72 FR 7387-7389), Implementation Principle #8, that limits archaeological field investigations in certain situations.

Implementation Principle #8:

“Archeological investigations should be avoided for affordable housing projects limited to rehabilitation and requiring minimal ground disturbance”


Source: Office of Environment and Energy, Environmental Planning Division, CPD, May 2009

The fact sheet was an internal document, but it got out to some State Historic Preservation Officers (SHPOs) and one of them shared it with me. It took me awhile to get around to it, but I finally responded to it as follows:

I recently received a copy of your May 15, 2009 email distributing HUD fact sheet #6 entitled "when to do archaeological field investigations." Can you please explain the rationale for this "fact sheet," which appears to me to fly in the face of a fair number of facts? I am particularly struck by the premise that the likely presence of National Register eligible archaeological sites is somehow indicated only by "reasonable adjacency" to "archaeological sites that meet National Register criteria." Is it HUD's assumption that archaeological sites exhibit some sort of herd behavior that causes them to group together and never drift lonely out across the landscape? Is it also HUD's assumption that they somehow present evidence to passersby of their consistency with National Register criteria -- perhaps like Republican members of Congress waving their versions of health care legislation at the President? And are they also expected to self-demonstrate the danger that they will be affected by a project -- perhaps by quivering in fear?

I'm also interested in how HUD defines such terms as "other qualified persons" and "direct relationship between such previously discovered sites and the project site." Am I, for example, a "qualified person" based on 50 years of archaeological practice, or must one work for a government agency? What sort of "direct relationship" must an unevaluated site demonstrate to a previously documented site? Geographic? Cultural? Genetic? How close must this relationship be?

And why, "for urban areas," is it "reasonable to consider the project site relationship only to such off-project archeological sites that are immediately adjacent to the project site? What does such "reasonable adjacency" even mean, considering that urban sites (and rural ones, for that matter) often do not have well-defined boundaries?

To help me understand HUD's logic, perhaps you could relate the fact sheet's guidance to a well-known real world case like the African Burial Ground in New York City or the site of Tse-whit-zen in Port Angeles, Washington. As you doubtless know, in both these cases "archaeological" sites of considerable cultural significance (especially to African-Americans in the first case, Native Americans in the second) that had not been evaluated for National Register eligibility were discovered during construction and (among other impacts) unnecessarily cost federal and state agencies tens of millions of dollars. I should think that it would be among HUD's interests to avoid such impacts on taxpayers and recipients of HUD financial assistance, but I may be wrong.

Thank you for your attention to this request.

I sent this off to the person in HUD who had distributed the fact sheet, and immediately received an automated response, as follows:

Your message wasn't delivered because of security policies. Microsoft Exchange will not try to redeliver this message for you. Please provide the following diagnostic text to your system administrator.

Lacking a system administrator, I distributed my note to several listservs whose participants may be permitted through HUD’s portcullis. We’ll see what happens, if anything.

Archaeologists concerned about application of HUD’s remarkable – uh, is it a policy? A position? An opinion? Anyway, archaeologists concerned about it as it applies to specific cases may want not only to cite NHPA and the National Environmental Policy Act in arguing for surveys where they’re actually appropriate, but also the much-ignored Archaeological and Historic Preservation Act of 1974 (AHPA; See, which requires agencies, upon finding or being competently advised that their actions, or actions they assist or permit, may destroy historical, archaeological, or scientific data (Note: the law makes no reference to the National Register), to notify the Secretary of the Interior and then either recover the data or assist the Secretary in doing so. Most agencies and others have happily ignored this law, assuming that compliance with Section 106 of NHPA takes care of its intent. Since HUD is apparently now applying Section 106 only to archaeological sites that crowd together and loudly announce both their National Register eligibility and their endangerment, it may be necessary to dust off the AHPA. People (e.g. tribes, other descendent communities) concerned about archaeological sites for other than archaeological reasons will have to employ other strategies.

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