Government Affairs Committee Report to Members, October 15, 2021

Prepared by 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.

State Issues

Human Burial Places Protection. Work on this matter with the Ohio History Connection (OHC) and its State Historic Preservation Office (SHPO) continues. It is listed as a priority for the Executive Director and State Historic Preservation Office (SHPO) in OHC’s 2021 – 2031 Strategic Plan https://www.ohiohistory.org/OHC/media/OHC-Media/Documents/OHC_Strategic-Plan_Final.pdf. Ohio Archaeological Council (OAC) member and SHPO staffer Krista Horrocks wrote an article titled “Ohio Cemeteries are in Grave Danger: A Call to Action” in the September-October 2021 issue of OHC’s Echoes Magazine

Ohio Underground Damage Prevention Coalition. Due to the pandemic, subcommittees of the Coalition discussing revising Ohio’s “call before you dig”/underground utilities protection law met infrequently last year. A virtual Coalition meeting was held on February 25, 2021. Subcommittees may make recommendations on revising the law to the Coalition later this year, but any changes will not be proposed until 2022. Changes to training requirements are problematic.

Newark Earthworks Litigation. On July 7, 2020, the Ohio Supreme Court decided that it would hear Moundbuilders Country Club appeal that OHC can terminate their lease using Ohio’s eminent domain statute https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2020/0191. Oral arguments were made on April 13. A decision is pending.

Federal Issues

Historic Preservation Fund (HPF). In July, the House passed the INVEST in America Act (H.R. 3684), a $715 billion, five-year transportation bill. The bill included an amendment to permanently fund the HPF and double its annual authorization from $150 million to $300 million. However, the Senate version, passed in August, does not contain that provision. Doubling the authorization could, if Congress makes a similar appropriation, significantly enhance the ability of State and Tribal Historic Preservation Officers (SHPOs/THPOs) to carry out their duties under the National Historic Preservation Act (NHPA), including providing much needed survey, planning, and registration grants. The HPF was established in 1976 and authorized at $150 million annually for SHPOs/THPOs. Funding for the HPF is provided from Outer Continental Shelf oil lease revenues, not tax dollars, and an amount is appropriated annually by Congress.

Native American Graves Protection and Repatriation Act (NAGPRA). The Department of the Interior is expected to formally publish proposed changes to the NAGPRA regulations in October. A summary of the proposed changes can be found at https://www.nps.gov/subjects/nagpra/upload/NAGPRA-Draft-Regulations-Overview-of-Changes.pdf.

Bills in Congress (information on all bills available at https://www.congress.gov/):   

African American Burial Grounds Network Study Act. Senator Sherrod Brown (D-OH) and Senator Tim Scott (R-SC) may reintroduce the African American Burial Ground Network Study Act in the Senate later this year. This bill directs the Secretary of the Interior to study how to identify, interpret, and preserve historic African American burial grounds. It authorizes $2.5 million to conduct the study and requires the results to be presented to Congress within three years of the money being made available. This bill differs somewhat from the legislation (S.2827) that was passed by the Senate on December 20, 2020. It died in the House.

H.R. 2930/S. 1471, Safeguard Tribal Objects of Patrimony (STOP) Act. These bipartisan bills, to enhance protections of Native American tangible cultural heritage, including human remains and cultural items, have been reintroduced in the House and Senate. Among other things, the bills would bar, and establish stronger penalties for, knowingly exporting Native American cultural items that were obtained in violation of NAGPRA and/or the Archaeological Resources Protection Act; establish an export certification system for items allowed to be exported; establish a Native American working group to provide recommendations regarding the voluntary return of tangible cultural heritage by collectors, dealers, other individuals, and non-Federal organizations that hold tangible cultural heritage, and the elimination of illegal commerce of cultural items and archaeological resources in the United States and foreign markets. H.R. 2930 was referred to the House Committee on Natural Resources, and Committees on the Judiciary, and Foreign Affairs. A hearing on the bill occurred on May 20. In the Senate, S. 1471 was referred to the Committee on Indian Affairs. On July 28, it was placed on the Senate legislative calendar and recommended for passage without amendment https://www.congress.gov/117/crpt/srpt33/CRPT-117srpt33.pdf. A vote is pending. Recently, the Society for American Archaeology drafted a flyer on the matter, linked to here https://documents.saa.org/container/docs/default-source/doc-governmentaffairs/stop_act_flyer.pdf?sfvrsn=b476a1d2_2. 

S.1942/HR1316, National Heritage Area Act. These bipartisan bills would establish a statutory framework for the National Park Service to administer the National Heritage Areas (NHA) program, bring uniformity to the way NHAs are designated, managed, and assessed, provide Congress the ability to conduct oversight of the program, provide $1 million in annual funding per NHA, reauthorize the 30 NHAs currently in limbo, and provide permanent authorization for the 55 current NHAs. Many NHAs include archaeological sites. 

Section 106 Consultations: 

Boston Mills North, Cuyahoga River Restoration. USEPA/NPS/USACE project, Cuyahoga Valley National Park, Cuyahoga and Summit counties. The OAC is a consulting party on this project to restore habitat and hydrology along several miles of the river. Federally recognized tribes are also involved. The project has been revised so it would not impact known, significant archaeological sites. However, the revised project has the potential to affect areas where there is a high potential for unrecorded sites to occur. Phase 1 archaeological surveys are in progress. We participate in all consulting party meetings and have submitted comments on the project’s scope of work to identify cultural resources and other matters. The project website is here: https://parkplanning.nps.gov/document.cfm?parkID=121&documentID=105031.

Irishtown Bend Hillside Stabilization. USDOT project, Cleveland, Cuyahoga County. The OAC accepted the invitation from the U.S. Department of Transportation (DOT) Maritime Administration (MARAD) to participate as a consulting party for the stabilization of the Irishtown Bend hillside to prevent it from sliding into the Cuyahoga River and disrupting Cuyahoga River commerce and recreation. The Irishtown Bend hillside includes a large archaeological district listed in the National Register of Historic Places (NRHP). Its significance spans the period 1850 – 1910 when it was an enclave of unskilled European immigrant’s homes and shops supporting Cleveland’s shipping and other industries. In accepting the invitation, we noted that the project is likely to cause adverse effects to the archaeological district, which was archaeologically investigated in the late 1980s by the Cleveland Museum of Natural History, and in the 2000s by ASC Group. An archaeological data recovery and construction monitoring plan (DRP) has been developed, and an MOA was recently executed. We commented on both emphasizing data recovery over monitoring. A presentation about the project at an OAC membership meeting and the preparation of an article for the Journal of Ohio Archaeology are included as stipulations in the MOA.

LRH 2021-267-SCR, Project Charger. USACE project, Franklin and Licking counties. The OAC requested to participate as a consulting party on this 177-acre commercial development because of concerns with the level of effort used to identify archaeological sites in the project area.   

McConnelsville Dam Replacement. ODNR and USACE project, Morgan County. The OAC is a consulting party on this project to replace the dam and its adverse effects to it (see Muskingum River Locks and Dams Assessments and Improvements project immediate below). We commented on measures to identify archaeological resources during replacement of the dam as stipulations in the draft MOA. The MOA has been executed.  

Muskingum River Locks and Dams Assessments and Improvements. ODNR and USACE project, Coshocton, Morgan, Muskingum, and Washington counties. The OAC is a consulting party in developing a programmatic agreement (PA) to consider the effects of improvements on NRHP-listed structures in the Muskingum River Navigation Historic District. The improvements would be done over a 10-year period. Our comments were primarily focused on concerns for archaeological investigations of construction staging areas and roads to same and identifying archaeological resources during dewatering around dam and lock facilities. The PA was executed on August 17.

Section 14 Emergency Streambank Protection, Raccoon Creek. USACE project, Newark, Licking County. We received and commented on correspondence concerning a modification to the project being implemented under the 1946 Flood Control Act, providing the USACE authority to construct small-scale emergency shoreline and streambank protection works to protect public facilities such as bridges, roads, and non-profit public facilities. A portion of this project is within the boundaries of the Octagon Earthworks, a National Historic Landmark (NHL). Pursuant to Section 106 of the NHPA, agencies must, to the maximum extent possible, minimize harm to a NHL that may be directly and adversely affected by a project. This is a higher standard of protection than an undertaking affecting a property that is only listed or eligible for inclusion on the NRHP. We agreed that the modification would not directly or adversely affect the Octagon Earthworks.

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 habitation site containing pit features, midden, and other activity areas. We reviewed and commented on the archaeological reports, MOA, and DRP. The MOA has been executed.

TRU-SR-46/82. ODOT project, Trumbull County. We were asked by an OAC member to get involved in this project. We requested consulting party status from ODOT, which was granted. We participated in a public meeting and separate consulting party meetings expressing concerns about the adequacy of the Phase 1 archaeological survey at a NRHP-eligible historic farmstead residence, which will be demolished or relocated, because geophysical survey was omitted from the Phase 1 scope of work. The archaeological component of the residence identified solely through shovel tests was determined not eligible for the NRHP by ODOT and SHPO prior to our involvement in the project. We submitted comments concerning the efficacy of the Phase 1 report and requested ground penetrating radar of the yard to identify anomalies of possible cultural significance, and archaeological testing of same, as stipulations in ODOT’s MOA to ensure that NRHP-eligible features would not be affected by the project. ODOT rejected this request. We recently commented on the draft MOA, and our concerns remain.

WAR-SR 63-0.38. ODOT project, Warren County. We were invited by ODOT to be a consulting party on this project, which we accepted. The project will widen 3.4-mile segment of SR 63 to four lanes. Known archaeological resources, including remnants of the former Union Shaker Village, may be affected by the project. A consulting parties meeting was held on July 8, and we made comments concerning a draft MOA and DRP. The final MOA was recently executed.

Zoar Levee and Diversion Dam repair. USACE project, Tuscarawas County. We continue to participate in monthly consulting party meetings on this project which will impact the Zoar Historic District, a NHL. The USACE and their archaeological consultants have conducted multiple archaeological and geophysical investigations in the project area. We reviewed and commented on the Phase 1 archaeological survey report, which included geomorphological, geophysical, deep trenching, and shovel test pit investigations. We reviewed and commented on the finding of effects and effects management options report. We also reviewed and commented on a management summary and survey report of a second geophysical survey report noting concerns about its efficacy. Continued consulting party meetings and concerns about the second investigation led to a third round of geophysical and archaeological survey. We reviewed and commented on the third-round management summary and report, which we found favorable. For information on this project see https://www.lrh.usace.army.mil/Missions/Civil-Works/Current-Projects/Zoar/.

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