NHPA Programmatic Agreements and Fire

The National Historic Preservation Act (NHPA) mandates consultation with appropriate parties before implementing Federal undertakings, including fire-related activities, but sometimes parks must respond to fires before consultation is possible. A programmatic agreement (PA) provides consultation procedures that streamline the standard four step process described in the Act. Programmatic agreements are useful in cases where:

• The proposed activities are mundane and repetitive, such that project-by-project review and consultation become unnecessarily time-consuming; or cultural resource managers verify that no historic properties will be adversely affected by fire-related activities: or
• A park must swiftly respond to or initiate critical fire response activities within a narrow time frame, and response protocols have been developed and agreed upon in advance.

A programmatic agreement can provide an alternative consultation process by facilitating agreement beforehand between the park, relevant State Historic Preservation Officer (SHPO) and appropriate American Indian tribal authorities. There are two types: the nationwide programmatic agreement and park-specific programmatic agreements.

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 and Fire-Related Activities

The nationwide programmatic agreement 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), primarily ground-disturbing activities. Examples of ground disturbing activities include:

• Removing vegetation;
• Creating temporary roads;
• Removing stumps;
• Digging handlines; and
• Leveling helispots.

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

• The park must have a fire management plan that has been approved by the Regional Office.
• 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.
• The park NHPA 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).
• The proposed undertaking must be an activity listed in the nationwide programmatic agreement as eligible for the alternative consultation process. Location of the cultural resource potentially affected by the activity is a important factor in determining whether use of the alternative consultation process is appropriate. Outside historic districts listed or eligible to be listed on the National Register of Historic Places, cultural landscapes, and archeological sites, eligible activities include:
  • 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, eligible activities include:

• 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.

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 develop programmatic agreements with the SHPO and with federally-recognized American Indian tribes stipulating the consistent use of these treatment measures, and reduce repetitive consultations about performing those activities.

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.

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).

Training about the nationwide programmatic agreement is available on the Common Learning Portal.