Government Affairs Committee Report, May 1, 2020
Al Tonetti, Chair Andy Sewell, Lauren Sieg, and Mike Striker, Committee Members
The mission of the Government Affairs Committee is to develop and advance legislative priorities, consult with government agencies, interested parties, and the public regarding the effects of government policies, regulations, actions, and projects on Ohio archaeology and archaeological resources, and provide leadership regarding the role of archaeology and archaeologists in civic affairs. If you want to participate in the Committee’s work, please contact Al Tonetti.
The Pandemic, Government Affairs, and Ohio Archaeology
Please see the Ohio History Fund and Ohio Humanities items below for information about emergency grants available to Ohio archaeology institutions and organizations.
The full extent of the pandemic’s effects on government-related archaeology remains to be seen. Archaeological investigations on essential infrastructure continues but at a slower pace because some projects are delayed, and others cancelled. Many agency archaeologists are working from home. Fortunately, a lot of archaeology fieldwork is done by private cultural resource management firms at “social distancing”, but adjustments traveling to and from the work site for multi-person field crews is necessary. Single occupancy rooms are necessary as well as frequently disinfecting personal protective equipment and shared equipment. The federal Occupational Safety and Health Administration https://www.osha.gov/ and state equivalents have standards, directives, and standard interpretations pertaining to this work, which OSHA classifies as “general industry” (everything except agriculture, construction, and maritime). OSHA’s information for workers and employers about the evolving coronavirus pandemic includes interim guidance and other resources for preventing exposures to, and infection with, the coronavirus. Please regularly consult the OSHA website for updates.
In Ohio, the Governor asked all agencies to immediately cut their operating budgets by 20% to help reduce deficits caused by steep drops in revenues and increases in expenditures to fight the pandemic and its economic hardships. This will likely result in project, program, and personnel reductions affecting archaeology. The anticipated state cuts could remove nearly $14 billion from the state's two-year, $69 billion 2020-2021 operating budget, which expires June 30, 2021. About 70% of the state operating budget comes from sales, income, and other taxes and receipts. The state begins developing the next two-year operating budget in July of 2020. Cuts in operating budgets are again likely because Ohio, unlike the Federal Government, must pass a balanced operating budget bill.
The state’s biennial capital budget, currently $2.62 billion, provides appropriations for the repair, reconstruction, and construction of capital assets of state agencies, colleges, universities, and school districts, i.e., essential infrastructure. In some years, funds may also be allocated for community projects of local or regional interest. Funding for most capital projects is supported by long-term debt issued by the state. The state is cutting back on many of these projects, some of which require archaeological investigations before construction. A new capital budget bill for 2021-2022 was in development at the time the “shutdown” occurred. Its fate is unknown, but its scale is likely to be reduced from what was being planned. In general, funding for state highways, bridges and other transportation construction is appropriated through the biennial Transportation Budget (currently $7.9 billion). Funding is primarily provided by motor fuel taxes and federal dollars. The state’s rainy-day fund was $2.7 billion before the pandemic. At the federal level it is much of the same, but without the requirement for a balanced budget the Federal Government has much more flexibility.
Regarding federal undertakings pursuant to Section 106 the National Historic Preservation Act (NHPA), the Advisory Council on Historic Preservation (ACHP) issued a blanket extension through May 29, 2020 for federal agency use of emergency Section 106 procedures regarding projects that respond to emergency and disaster declarations directly related to the pandemic. The extension only applies to projects that respond to the pandemic under the national emergency declared by President Trump on March 13, 2020 and related emergencies or disaster declarations that have already been issued by the President, a tribal government, or the governor of a state, or may be issued by any of them while the extension is in place. Such undertakings may include projects such as new construction or adaptation of existing buildings for COVID-19 testing, treatment, or quarantining; creation of COVID-19 temporary facilities; and development of infrastructure specifically built to serve COVID-19 facilities and services. Thus, most Section 106 undertakings should not be affected.
However, the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) included an exemption for the General Services Administration (GSA) from the provisions of both the NHPA and the National Environmental Policy Act. On April 17, the ACHP sent a letter to Congress opposing such exemptions because Section 106 regulations provide a variety of tools to adapt the process to the needs of agency programs, including the emergency provisions indicated above.
Human Burial Places Protection Bill. On January 23, 2020, OAC Government Affairs Committee Chair Al Tonetti, and Amanda Terrell (Director of the State Historic Preservation Office/SHPO), and Todd Kleismit (Director of Community & Government Relations) at the Ohio History Connection (OHC), met with State Representative Gary Scherer (R-Circleville) and Yosef Schiff (Legislative Service Commission [LSC]) to discuss proposed revisions to the draft bill. Revisions were made to address concerns expressed by interested parties at their June 11, 2019 meeting. Rep. Scherer asked LSC to incorporate the revisions and said he would discuss the revised draft with interested parties one-on-one. We are working with the LSC on clarifying a few revisions. The bill was a legislative priority for Statehood Day, see below, even though it is unlikely to be enacted before Rep. Scherer retires at the end of this year. That said, we hope to have a bill introduced this year so that legislators begin to discuss it. We are seeking new sponsors for reintroduction in 2021.
Ohio Underground Damage Prevention Coalition. Subcommittees of the Coalition continue to meet discussing revising Ohio’s “call before you dig”/underground utilities protection law. Subcommittees will make recommendations on revising the law to the Coalition later this year. Changes to training requirements are likely.
In a March 23, 2020 press release regarding the pandemic OHIO811, former the Ohio Utility Protection Service, stated:
“OHIO811 will remain fully operational, maintaining both our call center and online services, to receive excavation locate requests from those persons or entities with a need to excavate and then providing those requests to the utility operators involved.”
Continue to monitor OHIO811’s new website https://www.oups.org for updates.
Archaeology Guidelines Update. SHPO and its contractors continue working on revisions, hopefully developing a draft by July 1 and finalizing by the end of summer. SHPO wants to make the revised guidelines more user-friendly and easily updated on their website with links to best practices and other useful documents. New guidelines on geophysical survey, photogrammetry, tribal consultation and NAGPRA compliance, human remains, submerged resources, and integration with the history/architecture guidelines are the focus. Contact John Schweikart at SHPO for further information.
History Fund Grants. The OHC is developing an Ohio History Fund COVID-19 Emergency Grants program for 501(c)(3) history organizations. The application will be available at www.ohiohistory.org/covidgrant after May 1. Applications will be due June 1 and grant awards made will be made mid-July. Funds must be expended by Nov. 30, 2020. Ohio History Fund COVID-19 Emergency Grants will range from $500-$3,000 and be based on the applicant’s budget size. Unlike regular History Fund grants, COVID-19 Emergency Grants are intended to supplement operational costs, such as payroll and utilities. Applicants can also use grants to adapt programs for on-line audiences, such as K-12. There is no match required. Grant funds are limited. See the application when released, for details.
In 2019, the Ohio History Fund raised $99,696. Last year netted $99,119. The History Fund grant application deadline was September 4, 2019. Eight projects were approved, two of which deal with archaeological collections. Their abstracts were previously posted on the OAC website. Since 2012, and as of February 2019, the History Fund made 81 grants totaling $780,469. Demonstrating the need for the History Fund, it has received 388 grant applications (a funding ratio of 4.80) totaling almost $4.7 million in requests.
Ohio Humanities Grants. Ohio Humanities will provide $750,000 in emergency relief grants for historical societies, museums, and other cultural organizations affected by COVID-19 health crisis. Funded by the CARES Act, the grants will help mitigate revenue losses, maintain staffing levels, and protect collections. Applications for emergency grants will be available beginning on May 1; the first deadline for submission will be May 15, with first awards by June 1. Funding will continue to be available throughout the summer. Later in the year, additional grants will be available to help cultural organizations deliver programs that maintain the health safety of patrons during a post-pandemic environment. Ohio Humanities staff are available by email to help applicants navigate the application process to access emergency funding http://www.ohiohumanities.org/cares/. Ohio Humanities will continue accepting grant applications for regular projects as listed on grants page.
The CARES Act included $75 million emergency funding for the National Endowment for the Humanities (NEH). Forty percent of that amount has been distributed to the 56 state and territorial humanities councils to support local relief efforts. In late March, NEH reported that the anchors of the creative economy such as museums and historical societies were reporting losses of $1 billion every month as facilities were closed and educational programs were canceled.
Statehood Day. Occurred February 26, 2020. OHC’s capital improvement requests, the human burial places protection bill, and SB 192 making Poindexter Village an OHC site were the legislative priorities. Tonetti explained the human burial places protection bill to the approximately 350 attendees prior to meeting with their legislators.
Newark Earthworks Litigation. On January 29, 2020, Ohio’s Fifth District Court of Appeals unanimously affirmed the Licking County Common Pleas Court’s decision that the OHC has the authority to acquire the lease from Moundbuilders Country Club (MCC) at the Octagon Earthworks. MCC appealed this latest ruling to the Ohio Supreme Court, which has discretion to accept their appeal. If the Supreme Court does not accept MCC’s appeal, the case will return to Licking County Common Pleas Court for a jury trial to determine the value of the lease. In its decision the Fifth District Court of Appeals noted “we hold the trial (Licking County Common Pleas] court had before it extensive evidence and testimony to adequately support its conclusion that the present arrangement, in the interest of optimal usage and preservation, now needs to give way to full public access to these geographic remnants left by the prehistoric Native American inhabitants of this region.”
Universal Charitable Deduction Enacted. To lessen the federal income tax burden on taxpayers and increase incentives to give to charities, the CARES Act includes a maximum $300 deduction per tax return for cash (non-personal property; stocks are considered personal property not cash) donations to 501(c)(3) businesses, such as the OAC. Although there is some confusion about its applicability, and hopefully the Internal Revenue Service (IRS) will issue further guidance about it, the new charitable deduction is for taxpayers currently unable to itemize their deductions and limited to tax year 2020. Since 2018, when the Tax Cuts and Jobs Act took effect, the number of taxpayers itemizing their federal returns went from 30% to 10%, leaving 90% of taxpayers, unable to deduct charitable giving on their return. As a result, charitable giving has declined about 2%, with donations of $250 or less declining about 4.5%. Consult the IRS website for further information https://www.irs.gov/.
Modernization of NEPA Regulations. On January 10, 2020, the Trump administration’s Council on Environmental Quality (CEQ) issued a notice of proposed rulemaking to “modernize” its National Environmental Policy Act (NEPA) regulations. According to the CEQ, “the outdated regulations have slowed and impeded the development of needed infrastructure in communities across the nation. Environmental impact statements (EISs) for Federal highway projects have averaged over 7 years to complete and many reviews have taken a decade or more.” In examining the proposed changes, the OAC reviewed comments from organizations we are allied with such as the Coalition for American Heritage and the Society for American Archaeology (SAA). Both indicated that they are concerned that if these changes are made, they would dramatically reduce consideration of archaeological resources on federal infrastructure projects including those reviewed under Sections 106 and 110 of the NHPA. The Coalition’s initial review found the following concerns:
“Introducing a new concept – ‘a threshold analysis’ – to see if NEPA should apply at all, particularly for privately financed projects with ‘minimal government funding or involvement’ (terms that have yet to be defined). This has the potential of reducing the number of projects requiring cultural resources review. Limiting the consideration of indirect effects on the environment, effects that are often greater than direct effects. This has the potential of limiting the assessment of project effects on cultural resources. Banning groups that don’t weigh in during the public comment period from raising objections in litigation later in the process. This change runs counter to the fundamental NEPA goal of giving the public a voice in federal decision making and would curtail our ability to challenge potentially harmful projects.”
The SAA (a Coalition partner, as is the Ohio Archaeological Council) also requested members submit comments and prepared a template for their use. The OAC’s comments were submitted March 10.
Navigable Waters Protection Rule. On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) finalized the Navigable Waters Protection Rule to define “Waters of the United States” under the Clean Water Act. The final rule, meaning no further public comments allowed, will greatly reduce protection for certain waterways and remove requiring permits for adversely affecting them. Thus, archaeological investigations on projects that previously affected such waterways will no longer be required.
Budget/Appropriations. As indicated above, the pandemic will affect federal budgets and appropriations for the foreseeable future. Prior to the pandemic, on December 20, 2019, the President signed the 2020 budget bill (federal funding through September 30, 2020) giving historic preservation programs their highest-ever levels of funding, including $118.6 million for the Historic Preservation Fund, a $16 million increase over last year. State Historic Preservation Offices will receive an increase of $3 million, and Tribal Historic Preservation Offices an increase of $2 million. The bill also increases GIS mapping to identify cultural resources and improving permitting decisions. Funds for the Bureau of Land Management’s Cultural Resources Program will increase by $1.5 million including updating predictive modeling and data analysis capabilities of the National Cultural Resources Information Management System. The Land and Water Conservation Fund will receive $495 million, its highest funding level in 15 years. The bill also provides $21.944 million for National Heritage Areas, including a $1.6 million increase to fund newly authorized heritage areas.
Despite President Trump’s attempts to eliminate National Endowment programs, the bill awards even higher funding levels. The National Endowment for the Arts and the National Endowment for the Humanities will each receive $162.25 million, an increase of $7.25 million. The bill provides funds for National Park Service programs including $16 million for Save America’s Treasures, preserving our nation’s most significant cultural resources, $13 million for American Battlefield Protection Program grants, and $1.907 million for Native American Graves Protection and Repatriation grants.
Prior to the pandemic, the Trump Administration released their proposed annual budget. It again calls for dramatic cuts to the Historic Preservation Fund (HPF) and other preservation priorities. The budget would cut the HPF by $77.988, a 65% cut over FY20 enacted levels, including steep cuts for State and Tribal Historic Preservation Offices and the elimination of important competitive grant programs. The full breakdown of President Trump's request is below.
• State Historic Preservation Offices: $26.9M ($25.775M below FY20 levels)
• Tribal Historic Preservation Offices: $5.7M ($8.035M below FY20 levels)
• HBCU Preservation Program: $8 million ($2M below FY20)
The request would eliminate funding for the Civil Rights grant program, the grant program for underrepresented communities, Save America's Treasures, and the Paul Bruhn historic revitalization grant program. The request would also eliminate funding for the Heritage Partnership Program which supports National Heritage Areas. If enacted, these cuts would have a devastating impact on historic preservation across the country.
For the last 3 years Congress has soundly rejected the proposed cuts, and instead passed a record level of funding for the Historic Preservation Fund for three years in a row, including $118.66 million in FY20. The pandemic may change all that.
Advisory Council on Historic Preservation (ACHP):
Digital Information Task Force
In late 2018, the ACHP established a Digital Information Task Force to address the need for more uniformly available digital tools, including geographic information systems (GIS). It was meant to improve planning for federal projects by making information about the location of identified historic properties more readily available. Better information access has a clear connection to current government-wide efforts to improve the efficiency of environmental reviews, including Section 106 reviews, for infrastructure projects, and can advance broader goals such as improving engagement of stakeholders and the public in preservation planning.
The Task Force met through 2019, assisted by an advisory group of state and tribal historic preservation officials, technical experts, consultants, representatives of industry, and others with policy or operational experience in digital information management. Several issues emerged to guide the Task Force’s formulation of draft recommendations. They include raising awareness about the importance of digital historic properties information and enhancing resources to support it; enabling data exchange and overcoming management impediments to data availability; and effectively managing access and securing sensitive information.
The Task Force report is now available https://www.achp.gov/news/advisory-council-historic-preservation-task-force-issues-recommendations-improve-availability .The report outlines five major recommendations:
• Make the Administration, Congress, agency officials, and the public aware of how digital information, including GIS, increases the effectiveness and efficiency of project planning and helps avoid harm to historic properties.
• Identify opportunities for funding and resource enhancement.
• Enable cultural resources GIS data exchange between states, tribes, local governments, and federal agencies.
• Address data management impediments to increase GIS availability.
• Responsibly manage access and secure sensitive data.
A series of action recommendations accompany the report findings. The ACHP will carry out these tasks to implement the report’s recommendations in cooperation with federal and preservation partners.
Early Coordination with Indian Tribes During Pre-application Processes: A Handbook
The ACHP recently issued a handbook to assist federal agencies, Indian tribes, and industry to work collaboratively and effectively in pre-application planning before formal government-to-government and Section 106 consultation would begin. The handbook includes best practices from an Indian tribe, an energy company, and a state transportation agency. A 90-minute companion eLearning course, early coordination with Indian tribes for infrastructure projects, is also available for federal agencies and applicants.
Working with Section 106 Review: Program Alternatives
There has been steady interest among federal agencies in establishing program alternatives since they were first made available by the Section 106 regulations issued in 1999, and the ACHP is now seeing an unprecedented level of interest in the use of these flexibilities. The President’s $7.4 million FY 2021 budget request for the ACHP will help the agency address projected demands for infrastructure-related Section 106 program alternatives in the coming year. Program alternatives are methods available for federal agencies to meet their review obligations in lieu of using the standard Section 106 four-step process. They allow federal agencies to tailor the process to meet specific program needs and have the potential to increase the efficiency and effectiveness of Section 106 reviews for activities that may affect historic properties. The two most common are program comments and programmatic agreements. The ACHP recently added more information to their website about program alternatives, including a chart comparing the five types, specific guidance, and lists of all existing nationwide program alternatives by type. A special issue of the Section 106 News this spring will share more information on several new program alternatives currently under development.
Free online distance learning opportunities. The courses are to learn about federal historic preservation regulations that govern how federal agencies and their grant recipients and permit holders consider the impacts of their projects on historic properties. Known as the Section 106 process, the review requirement should be understood by state and local agencies, planners, developers, consultants, and anyone who works on projects that receive federal assistance or require federal permits.
The ACHP has seven free courses on its eLearning portal, including a new 60-minute course, “What Now? Protecting Historic Properties in Disaster Recovery.” The new course provides a basic introduction to the procedures under Section 106 regarding federally funded, licensed, or permitted undertakings that respond to emergency and disaster declarations. In May, the ACHP also offers a free Stay-at-Home series of four webinars to introduce decision makers, project managers, consulting parties, and others with limited experience to the main requirements of Section 106 review. For more information and to register: https://www.achp.gov/training/webinars.
Bills in Congress (information on all bills available at https://congress.gov/):
S. 2430, Paving the Way for Rural Communities of 2019 Act. On August 1, 2019, Senators Blackburn (R-TN), Perdue (R-GA), and Hyde-Smith (R-MS) introduced S. 2430. This partisan bill would remove compliance with the National Environmental Policy Act, the Endangered Species Act, and the National Historic Preservation Act for federally funded projects or activities in any area of the country that is not part of a metropolitan statistical area (MSA). In Ohio, this would remove compliance in 50 of Ohio’s 88 counties, all of them rural. S. 2430 was referred to the Senate Environment and Public Works Committee. No hearings on the bill have occurred. We will work with our partners at the federal level, particularly the Coalition for American Heritage and the Society for American Archaeology, in opposing this bill.
H.R. 1179/S. 2827, African American Burial Grounds Network Act. In June, the OAC joined 72 other local, state, and national organizations, including six from Ohio, in a letter of support for the bill to the Subcommittee and the House Committee on Natural Resources. Introduced on February 13, 2019, H.R. 1179 has 49 bipartisan cosponsors including Ohio Reps. Balderson (R-Troy), Beatty (D-Columbus), Fudge (D-Cuyahoga and Summit counties), and Turner (R-Dayton). On May 22, 2019, the House Natural Resources Subcommittee on National Parks, Forests, and Public Lands held a hearing on the bill. It would create within the National Park Service the African American Burial Grounds Network that would:
• Create a voluntary, nationwide database of historic African American burial grounds, with the consent of the property owner;
• Provide technical assistance to local public, private, state, and local partners to research, survey, identify, record, preserve, evaluate, and interpret these burial grounds;
• Make available grants for local groups to research, survey, identify, record, and aid in the preservation of sites within the Network; and
• Establish educational materials for community members, local groups, and schools about African American burial grounds.
On November 11, 2019, Ohio Senator Sherrod Brown introduced companion bill S. 2827 in the U.S. Senate. It was assigned to the Senate Energy and Natural Resources Committee. It has six bipartisan cosponsors. The bill has not had a hearing.
H.R. 3846/S. 2165, Safeguard Tribal Objects of Patrimony (STOP) Act. Bipartisan bills to explicitly bar and establish penalties for knowingly exporting Native American cultural items that were obtained in violation of the Native American Graves Protection and Repatriation Act, the Archaeological Resources Protection Act, or both. The bills have been referred to the House Natural Resources, Judiciary, and Foreign Affairs committees, and the Senate Indian Affairs Committee, respectively. The House bill has 18 cosponsors, none from Ohio. On September 9, 2019, a hearing on the bill was held by the House Natural Resources Subcommittee for Indigenous Peoples of the United States. The Senate bill has 9 cosponsors, none from Ohio. It has not had a hearing. The SAA requests members act supporting this bill.
Section 106 Consultations:
Thornwood Crossing Bridge. ODOT project, Licking County (Newark). The OAC accepted ODOT’s invitation to be a consulting party to address impacts on 33LI1740, a Middle Woodland period Hopewell habitation site containing relatively undisturbed pit features, midden, and activity areas. We will review documents related to this project and provide ODOT and SHPO with feedback.
Buckeye Lake East End Dredge Material Relocation Area. USACE/ODNR project, Perry County. OAC is a consulting party on this project that affects 33PE1221, an open-air Late Archaic habitation site determined NRHP eligible. Avoidance of project impacts was recommended by USACE/ODNR and SHPO. The OAC requested further clarification on the site’s NRHP eligibility and why avoidance was recommended over data recovery.
Judge Barker House. USACE project, Washington County. Archaeology at the NRHP-listed building has been completed without finding anything of significance. Continued consultation occurs between the USACE, SHPO, local, state, and national preservation organizations, state and federal legislators, and others. Relocation of the property is no longer being considered. Transfer of ownership of the building to a local nonprofit organization is likely.
Maumee River Bridge. USACE/ODOT project, Henry County. The MOA has been executed and data recovery completed at site 33HY167. The Miami Tribe is an invited signatory on the Memorandum of Agreement (MOA); the OAC and Eastern Shawnee Tribe are concurring parties. The MOA included a stipulation to prepare an article about the archaeological investigations for an unspecified peer-reviewed journal.
Zoar Levee and Diversion Dam repair. USACE project, Tuscarawas County. Consultation on impacts to the Zoar Historic District, a National Historic Landmark. The USACE and their archaeological consultants have conducted archaeological and geophysical investigations in the project area. The Phase 1 survey report including geomorphological, geophysical, deep trenching, and shovel test pit investigations were reviewed, and comments submitted. No direct impacts to the two archaeological sites documented are foreseen, although further geophysical survey near one of the archaeological sites is likely. We are now reviewing the revised project description, description of the area of potential effects, finding of effects, and effects management options. For information on this project see https://www.lrh.usace.army.mil/Missions/Civil-Works/Current-Projects/Zoar/.
Gorge Metro Park Dam. USEPA project, Summit County (Metro Parks). Removal of Gorge Dam in Cuyahoga River. The OAC submitted comments on reports addressing the identification of historic properties.
Wayne National Forest Plan Revision. Tonetti continues to participate in monthly conference calls. The draft assessment of current conditions phase of the revision was released January 24 and is to be finalized early summer. General comments concerning the draft assessment on heritage resources were submitted. The plan development phase is scheduled to begin this summer with the implementation and monitoring phase completed in 2023. We are likely to have more meaningful input during the plan development phase. See plan revision information at https://www.fs.usda.gov/main/wayne/landmanagement/planning.