that law definitely needs to be addressed about the acreage issue.  Developers had to of had there wallets in the bill considering most archaeological sites wouldn't be near 10 acres.  It seems like if they were drilling for natural gas there would be some kind of federal regulations that would require at least some impact assessments.

It seems odd that these types of activities aren't being regulated by FERC, OSM, USF&WS, or at least dalling under the Threatened and Endangered Species Act or Clean Air Act.  Any one of those should trigger review under NHPA.  Then again, FERC has never been known for following NHPA.

hmm, i am unfamiliar with most of the regulations at this point.  I was thinking along the same lines as you with the environmental aspect that this should be encompassed under NEPA and then hit on NHPA.

Just got a couple of Thomas King books to read through for an internship this summer.

Unfortunately, I am seeing a lot of this lately.  In these situations, where you have a combination of On-shore development, with private surface and private minerals, there is no federal undertaking.  With no undertaking there is no compliance with the NHPA or NEPA (although NEPA is triggered by a federal "action" instead of an "undertaking".  Basically the same thing, but a little different).  So there are no federal legal requirements.  State and local laws may apply, but they vary widely as to what is required.

That's interesting.  So how would it have worked if he had registered the site when he originally excavated it?  Would that change anything or still not matter since it was on private land?

Dwarmour,

By "registering" I presume you mean nominating for listing in the National Register?

If nominated and determined eligible it wouldnt mean a thing - the property still can be damaged or wiped off the face of the earth.

SHPO Grunt points out that there may be no federal nexus on private land with private mineral rights, as the case may be here, so listing wouldnt mean a thing. However, I bet there is a federal permit involved in this drilling/extraction/transportation/sale of this energy supply somewhere, and that would (should) kick in a NEPA/NHPA review, but only if the permitting agency understood its obligations under the law, which they sometimes dont, as you'll see as you read King's works. (I love long sentences!)

FireArch, that's what I was meaning by registered and I see your point. The King books are providing a lot of useful information on the subjects of 106 and NHPA.

In a perfect world I guess, if one is defining resources as cultural or natural it would seem that they would both be equally important in preserving or at least maintaining.  Say the drilling company had tapped into an aquifer and contaminated a city's water supply, wouldn't they be liable?  Water is obviously more important in preserving than cultural resources but if they both are embedded within the same laws it would seem that companies would need to be more proactive in not disturbing any resource they aren't there to extract, if not proactive in preventing their destruction at least accountable when they are destroyed.

The water example may be the wrong choice since there is probably a law for that specifically but you see where i'm coming from even if it is totally wrong haha.  In light of the forum slumps maybe my enlightenment and public ignorance on some subjects may help get more posts started and sometimes long sentences are unavoidable, although this one could have been punctuated properly. 

I don't know the particulars of this specific well, but I hope you are right FireArch.  However, I know of at least two oil/gas plays where this is happening, and we cannot find any federal invovlement whatsoever.  The only permits invovled are State and County.  We looked into the State Environmental Quality permits as they have primacy from the EPA in regards to the Clean Water and Clean Air Acts.  But, nope, the official word from the EPA Solicitor General was that it was entirely a state action (as the state has it's own Clean Water and Air Acts) and not a federal undertaking. 

"Say the drilling company had tapped into an aquifer and contaminated a city's water supply, wouldn't they be liable?"

Have you seen Gasland? If not, you should. You'll see that the domestic oil and gas industry is practically unregulated with respect to screwing up the underground resources, let alone those above ground.

Even though NEPA is supposed to integrate cultural resources (CR) within the larger EA/EIS process, CRs are usually treated separately despite what the laws say.

SHPO Grunt, that's unfortunate. Hope the state regs are tight.

So doing a little research, PA's Department of Environmental Protection (DEP) basically has a check box on the permit as to whether the well will be drilled within 200 feet of an archaeological or historical site.  If the are of construction is less than 10 acres, DEP is not required to notify the SHPO or PCHP (?).  However, the DEP has a few stipulations in their regs that allow them to protect significant resources, but it is basically up to them and I imagine would require a lot of public support for a site and SHPO involvement.  They also mention that site listed on the NRHP must be coordinated with the Office of Surface Mining under the Surface Mining Control and Reclamation Act of 1977.  So there is obviously OSM involvement in the regulation of these activities.  They are also required to get NPDES permits through the EPA, which doesn't have a strong trigger for Sec. 106 (although it does), but I couldn't find any information about this in PA.

So, all that being said, it is likely that OSM and EPA have relegated management of OSM regulations and NPDES permits to the state, which would put everything under the DEP's code.  That's how it is in Texas and it appears to be pretty clear in the OSM and EPA rules about relegating this authority.  However, some quick googling of NPDES in PA seems that EPA pulled out of that deal because they were unhappy with PA's management of NPDES permits, especially with relation to these types of activities.  In my opinion, there is definitely a federal trigger here, but getting on the table would be a huge effort and would probably take the impact to a site of MAJOR importance for any of this to get resolved.  I imagine those drilling companies are smart enough to avoid that.

I went through a similar situation like this in another state where a large controversial project avoided federal regulation (still not sure how they did that) that resulted in a SHPO employee getting fired and numerous headaches for my smaller, related project that was under 106.

"In my opinion, there is definitely a federal trigger here, but getting on the table would be a huge effort and would probably take the impact to a site of MAJOR importance for any of this to get resolved."

Per T. King, it really doesnt matter how "important" a Building, Structure, Object, or Site is; it matters how much it "matters" to people, especially those who are willing to do something about it. Unfortunately, the former opinion is the one usually held withing the permitting agencies....

That's quite of bit of diggin' you did there Prisoner, excellent work.

One avenue of pursuing this might be for cultural resource proponents to start partnering with environmentalists as they push for more regulation of these activities.  It would probably be easier to sneak some CRM language into a broader environmental bill than to go it alone.  Plus, this type of mining (fracking) is a pretty hot topic around the country and world right now and regulation of it also seems pretty loose.

Firearch, I haven't seen Gasland. Sounds pretty good though and I guess will amaze me at how much they are allowed to get away with, money convinces everybody.  

HYPOTHETICALLY, if 106 were being following in this situation and there were a group who viewed this as an important issue, like the individuals in the article, would they be considered additional consulting parties? (sorry guys if i am throwing everyone off topic by enquiring about the processes).

If this were to trigger federal regulations would the company be reprimanded or would the tactic of destroying the site before work as a tactic to kill the NEPA process of going through and identifying parties and historic properties?

Again, sorry for the naive questions, just trying to use this as a small exercise for what I've been reading.

They could be considered consulting parties IF there is a federal nexus, and IF they convince the federal head to listen to them/consult with them. This happens a lot out in the West when the feds find themselves under lawsuit for not consulting with the tribes (to the extent the tribes think they should be consulted with anyway).

No manner of local, statewide, or national importance will trigger a 106 review/consultation unless there is a federal nexus, as SHPO Grunt points out.

Dwarmour, if you dont already have it I suggest T. King's "Saving Places That Matter." It's an excellent resource. I even copied portions of it for my Father to use to get the BLM to consult with him in protecting the community water conveyance feature that the area ranches rely upon. It worked.

Thanks, i actually just opened that particular book.  I am reading through the "Federal planning and historic places" currently but I feel it will require a second time through.

Hi Dwarmour:

<<HYPOTHETICALLY, if 106 were being following in this situation and there were a group who viewed this as an important issue, like the individuals in the article, would they be considered additional consulting parties? (sorry guys if i am throwing everyone off topic by enquiring about the processes).>>

OK, if there had been a federal undertaking in this situation, and the 106 process had been followed, then yes, the federal agency would have been required to identify interested parties.  It may or may not have included the individuals in the article, but it could have.  And it may  have included Native American tribes.  Given modern directional drilling techniques, they may have been able to avoid the site.  If they couldn't, the Federal agency, SHPO, ACHP (if involved) and the interested/consulting parties would have to figure out appropriate mitigation.  In this case probably data recovery.  Then they would have executed a Memorandum of Agreement to implement that mitigation. Unfortunately, without a federal nexus, this didn't happen.

<<If this were to trigger federal regulations would the company be reprimanded or would the tactic of destroying the site before work as a tactic to kill the NEPA process of going through and identifying parties and historic properties?>>

First things first.  NEPA and the NHPA are seperate laws.  The NHPA isn't dependent on NEPA.  Even if a project is a Categorical Exclusion under NEPA, the federal agency has to comply with Section 106.  So intentionally destroying a site would have no effect on NEPA.  It would, however, have an effect on Section 106.  A major effect.  Per Section 110(k) of the NHPA:

"Each Federal agency shall ensure tha tthe agency will not grant a loan, loan guarentee, permit, license, or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless teh agency, after consultation withthe Council, determines taht circumstances justify granting such assistance despte the adverse effect created or permitted by the applicant."

So, generally speaking, is somebody intentionally destroys a site to avoid having to deal with it under 106, the federal agency denies the project.  I've only seen it happen once.  Mainly because it is very difficult to prove intent.  They have to be pretty blunt about it.

I hope that helps.

A bit of history and some more info on this type of project form a SHPO type (but certainly not a Grunt =).

Once upon a time, PA had a stronger law - one that required the developers to pay for archaeological testing on state projects and that (I believe) did not have the 10 acre requriement.  Then the builders got up in arms and made a lot of noise - and got the law changed.  (10-15 years ago) - when Ridge was Gov).  They were able to get legislators at the time to see doing archaeology as an undue burden to put on developers - and instead placed that burden on the state.  Of course the state could not afford to do the same level of investigation on every project - so the frequency of archaeological studies took a major hit.  Lesson - pay attention when an interest group starts to lobby for doing less survey - they can be successful and create a bad situation.  Hopefully PA can some day get back to putting the burden of cost where it really belongs, on those looking to destroy sites for personal profit, rather than on the taxpayers of the state who get no benefit from private projects.

There are many types of projects that have no Federal hook, and many might surprise you.  In the case of these wells - since they are exploratory - they are not hooked into any interstate pipeline system,and therefore are wholly within the jurisdiction of state law.  Now if they find oil, and need to build a connector system that ties into an interstate pipeline - That will be federal undertaking.  Of course if the gas companies can find a way to build a system that is wholly within a single state - they may still avoid Federal status.

Strangely, I found out years ago while trying to get a federal agency involved - that there are certain gas byproduct (still not sure what that means or what they are) that are not considered federal undertakings even if the lines cross state boundaries - as they are not regulated by FERC.

There has been some discussion of NEPA as well as NHPA - important to keep in mind though that the same criteria apply.  If not a federal undertaking - no NEPA.  Also, keep in mind that while King's books are great for 106/NEPA - they are written to federal guidance.  Often the state regs (where they even exist) have some differences - like no provisions for interested parties, no mandate for Native American participation, etc.

Someone point out that no level of NR evaluation will lead to 106 review if there is not a federal hook.  On the other hand - if there is a federal hook, there is no need for a known site to be present to request survey. 

With regard to SPDES permits - getting any review on them is often a real hit or miss, but if you are in a state where EPA has delegated to a state agency - don't hold your breath for a 106 review (though you might be able to get a state level review from the state agency if there is a state reg).  The problem is that it was the action which delegated the process to the state agency that should have gone through 106 review - since that was the federal action which had a potential to (eventually) lead to adverse effects.  Unfortunately, no one noticed that during the days when delegating was being done.  So now, even though it appears on the surface the SPDES are federal undertakings, they are really state actions, since it is the state agency which makes deicsions regarding them.  Very strange and convoluted argument - but I have gone through it several times with both fed and state agencies and their legal types.  Bottom line a SPDES in a delegated state - hope for state level review.

Probably a lot more in this thread I could respond to - but I will leave it at that.  This is a great thread that illustrates why I allwasy say that all consulting archaeologists should spend a few months interning at a SHPO office - getting to know the much larger picture of what is involved than most of them have any clue about.  I went to a SHPO after spending 18 years in consulting, and very quickly leanred how little I actually knew about the various processes.  I would suggest anyone interested in doing more than excavtion should take at least one class on understanding the processes (hopefully given by someone that really understands them) and then recognize that they have probably only covere the tip of the iceburg on all that is involved.