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NPS Archeology Guide > Cultural Resources and Fire > 7. NHPA Programmatic Agreements

NHPA Programmatic Agreements and Fire

The National Historic Preservation Act (NHPA) provides a process to develop programmatic agreements that offer alternative consultation procedures to the standard four step process described in the Act. Two types of programmatic agreements provide alternative NHPA Section 106 consultation processes related to fire activities: nationwide programmatic agreements and park-specific programmatic agreements. Programmatic agreements are useful in cases where:

In these instances, a programmatic agreement can provide an alternative consultation process by facilitating agreement beforehand between the park and the relevant State Historic Preservation Officer (SHPO).

This section of Cultural Resources and Fire introduces park superintendents; cultural resource managers in parks, regional offices, and centers; and fire program managers to NHPA programmatic agreements.

The Nationwide Programmatic Agreement for Fire-Related Activities

In 2008, NPS, the Advisory Council on Historic Preservation (Advisory Council), and the National Conference of State Historic Preservation Officers (NCSHPO) executed a nationwide programmatic agreement that outlines an alternative approach for compliance with NHPA Section 106 for certain activities having little or no potential to affect historic properties (Programmatic Agreement Among the National Park Service (U.S. Department of the Interior), The Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers for Compliance With Section 106 of the National Historic Preservation Act). The alternative review process may be used on a case-by-case basis for certain fire-related activities in individual parks.

In order to use the alternative review process described in the NHPA nationwide programmatic agreement for consultation with the SHPO, all four criteria listed below must be met:

  1. The park must have a fire management plan that has been approved by the Regional Office.
  2. The proposed undertaking must be an activity listed in the nationwide programmatic agreement as eligible for the alternative consultation process. Eligible fire-related activities include:
    • Outside of historic districts listed or eligible to be listed on the National Register of Historic Places, cultural landscapes, and archeological sites:
      • Removal of dead and downed vegetation
        • using equipment and methods that do not introduce ground disturbance beyond documented natural or historic disturbance (can include use of fire).
      • Forest management practices, including thinning of tree stands,
        • using equipment and methods that do not introduce ground disturbance beyond documented natural or historic disturbance;
      • Restoration of existing fire line disturbances, such as hand lines, bulldozer lines, safety areas, helispots, and other operational areas; and
      • Slope stabilization, to include reseeding with native seeds, replanting with native plants and/or grasses, placement of straw bales, wattles, and felling of dead trees, providing that the root ball is left intact and in situ.
    • Within historic districts listed or eligible to be listed on the National Register, cultural landscapes, and archeological sites:
      • Removal of dead and downed vegetation, if the vegetation does not contribute to the significance of the historic district, cultural landscape, or other historic property,
        • using equipment and methods that do not introduce ground disturbance beyond documented natural or historic disturbance (can include use of fire);
      • Restoration of existing fire line disturbances, such as hand lines, bulldozer lines, safety areas, helispots, and other operational areas; and
      • Slope stabilization, to include reseeding with native seeds, replanting with native plants and/or grasses, placement of straw bales, wattles, and felling of dead trees, providing that the root ball is left intact and in situ.
  3. Inventory and evaluation for eligibility for nomination to the National Register of Historic Places (National Register) of all cultural resources within the project area of potential effect must be completed.
  4. The park Section 106 coordinator has reviewed the proposed undertaking and certified that the effects of the proposed project on historic properties eligible for the National Register will not be adverse, including considerations of direct, indirect, and cumulative effects. The Effect Finding must be “No Historic Properties Affected” or “No Adverse Effect.” (2008 NHPA nationwide programmatic agreement III.A).

Examples of ground disturbing activities include:

Parks that cannot demonstrate that the areas of planned fuel reduction projects have been fully inventoried may either develop park-specific programmatic agreements to accommodate these circumstances or follow the standard four-step process specified in the Section 106 regulations–36 CFR Part 800.

Park-specific Programmatic Agreements

Pursuant to Section IX. Subsequent Agreements of the 2008 NHPA nationwide programmatic agreement, park superintendents may develop additional agreements with the SHPO or with federally-recognized Indian tribes that stipulate the conditions under which further consultation or formal review about fire activities is not required. Such agreements may be specific to a project, plan, activity, or park, and may supplement or be independent of the nationwide programmatic agreement.

For example, the park may suggest that high-risk or sensitive cultural resources and historic properties can be effectively protected through the application of particular treatment measures. The park can accelerate the review process by developing programmatic agreements with the SHPO and with federally-recognized Indian tribes stipulating the consistent use of these treatment measures.

The list of treatment measures that will be accepted as standard and applicable without resource evaluation and without consultation is likely to vary between SHPOs and depend on the level of knowledge within the SHPO office with respect to fire effects to cultural resources. Acceptable treatment measures may be different between SHPO offices, because they may differ with regard to what constitutes an adverse effect, or their relative tolerance of effects.

Some SHPOs may recommend treatment measures that will offer little or no risk of any physical changes to cultural resources. Those types of standard treatment measures are more likely to involve complete avoidance and the exclusion of fire or any ground disturbance. Fire exclusion may be accomplished by placing fire lines around cultural resources.

Other SHPOs may accept certain treatment measures as “standard” even if those measures expose resources to some level of risk or affect physical traits not thought to be of central importance to the historic property. Although some treatment measures may cause physical change, the objective of the treatment measure might be to protect the characteristics of the cultural resource that are most likely to define its importance.

If a SHPO narrowly defines the standard treatment measures that need no consultation, then the park might negotiate to consider a wider range of standard treatment measures that may be applied with expedited consultation.

Standard treatment measures provide the SHPO, Indian tribes, and the public with a clear picture of the management directions that a park will take to ensure adequate treatment of cultural resources in the event of wildland fire activities. Depending on circumstances, SHPOs are likely to agree that the parks may conduct fire activities without additional review if standard treatment measures are applied and cultural resource protection can be reasonably assured.

Agreements reached between a park and a SHPO, THPO, or federally-recognized Indian tribe at the conclusion of NHPA Section 106 compliance activities concerning standard treatment measures, avoidance of cultural resources, or mitigation of fire and fire-related activities are documented in a programmatic agreement.

For additional information on developing a park-specific programmatic agreement, see Section II.A.4, II.F, and IX of the 2008 NHPA nationwide programmatic agreement and refer to 36 CFR 800.14(b).

More information about the nationwide programmatic agreement is available in the NPS Programmatic Agreement Toolkit.

MJB