127.2 Historic Preservation and Cultural Resources

Additional Information

Borrow and Excess Material Areas

Design-Build

Missouri Historic Bridge Inventory

Missouri Historic Bridge List

Section 4(f) Evaluations

Handwork preserved the historic limestone gutters along a resurfacing project

Cultural resources can include archaeological sites, buildings, bridges and other structures such as dams and tunnels, and even landscapes that still maintain a palpable connection to the past. The Federal Highway Administration (FHWA), as an agency of the federal government, has responsibilities for the identification, protection, and stewardship of historic properties in their control so future generations can experience our history. These tasks are codified in a series of laws and policies. Much of the responsibility to follow these laws has been delegated by the FHWA to MoDOT.

MoDOT must consider the potential impacts any MoDOT project may have on significant cultural resources to comply with federal and state historic preservation laws and to be environmentally responsible. For projects being developed, this process is typically started at the time the project manager submits a Request for Environmental Services (RES) to Design.

A cultural resource is any archaeological site, building, structure (e.g., bridge), district, or object. A significant cultural resource is one that meets certain criteria and is included in, or eligible for inclusion on the National Register of Historic Places (National Register) and is termed a historic property or historic resource. Not all cultural resources are historically significant, but potential project impacts to all must be considered.

MoDOT may have historic preservation concerns for any project or activity that involves:

• Ground disturbances within existing or proposed MoDOT right of way or easements;
• Modifying or removing a bridge or culvert;
• The destruction, relocation, or encroachment upon a building(s); and/or
• The purchase or sale of right of way

These actions may be associated with initial highway construction, maintenance, or subsequent improvement activities. Even if a project plan does not include these actions, later contractor or maintenance tasks could meet one of these criteria. Evaluating whether a project or activity may impact a cultural resource requires specialized training and experience. MoDOT staff able to make these determinations is in the Historic Preservation Section of Design in the Central Office. It is imperative that the Historic Preservation Section be involved in project determinations about cultural resources and be notified if cultural resources are encountered within job limits during construction or on highway property in general.

127.2.1 Historic Preservation Regulations and Laws

The primary legislation that requires cultural resources investigations is Section 106 of the National Historic Preservation Act of 1966. Compliance with this law is required whenever a project uses federal funds or requires federal permits. Section 106 requires three things: identifying resources that could be impacted by the proposed action; evaluating the nature and severity of the project impacts to historic resources; and attempting to avoid, minimize or mitigate project impacts to the historic resources.

There are additional historic preservation laws and guidelines that MoDOT must comply with. Potential project impacts to certain kinds of historic resources that are identified during project development may require the preparation of a Section 4(f) evaluation that requires comparison of costs and impacts associated with avoiding the resource. The Section 4(f) process states that an alternative that is generally similar in cost and constructability but avoids the significant resource must be selected whenever possible. Federal laws also require that American Indian tribes be consulted if a project will impact prehistoric burials or sites that the tribes may consider important.

There are two state laws that involve projects encountering human burials. The Unmarked Human Burials law (RSMo 194) addresses situations where activities impact prehistoric burials and previously unrecognized historic burials. The Cemeteries law (RSMo 214) addresses project impacts to cemeteries and historic burials that are marked by headstones, particular kinds of vegetation or local folklore. If burials are found during construction (see Sec. 107.8 and 203.4.8 of the Missouri Standard Specifications for Highway Construction ), construction in that area must cease and MoDOT’s Historic Preservation Staff must be contacted. If contact cannot be made with the Historic Preservation Staff, then the county sheriff must be contacted.

127.2.1.1 Alternative Financing or Partnership Projects

MoDOT may participate in a project in which an off-system or private partner may fund or build a project. FHWA has indicated to MoDOT that they expect all activities on property that ultimately will be incorporated into the MoDOT roadway system to comply with all appropriate state and federal historic preservation regulations and requirements ( Section 106 and Section 4(f)). Projects not incorporated into the system (e.g. a tunnel under a road or a bridge over the road) may also require Section 106 compliance. Thus on a project that will include MoDOT and non-MoDOT right of way, MoDOT will ensure that only the MoDOT portion of the project complies with all historic preservation requirements. It will be the responsibility of the other partners to ensure that the non-MoDOT portion of the project complies with appropriate historic preservation requirements. Although not required, it often is wise for project partners to ensure that their portion of a project complies with state and federal historic preservation requirements since funding and MoDOT-non-MoDOT project limits may change in the future.

127.2.1.2 Artifacts

Prehistoric artifacts may consist of stone tools such as "arrow heads", flakes of chert from the manufacture of tools, pottery, bone, or mussel shell concentrations. Sometimes artifacts will appear in a "feature" such as a hearth or storage pit that may include a distinct outline, charcoal, and mottled soils. Historic artifacts may include bottles, broken china, nails, window glass, and features such as old wells, cisterns, foundations, root cellars, or privy pits. When in doubt whether or not artifacts found during construction constitute an archaeological site, MoDOT Historic Preservation staff is available to examine the finds and determine if further investigation is warranted. If the artifacts indicate an important archaeological site, Historic Preservation staff will work with construction personnel to avoid or minimize disruption to the project. Sample artifact types are illustrated below.

Examples of stone tools

Examples of prehistoric pottery

Examples of historic artifacts

A historic rock feature

As noted above, MoDOT archaeologists will work with project personnel to avoid or minimize disruption to the project while satisfying Section 106 requirements. Failure to report a find during construction can result in adverse publicity for MoDOT and create greater delays for the project as other regulatory agenies may become involved.

127.2.1.3 Confidentiality of Archaeological Site Locations

Some information, such as the location of archaeological sites, is considered confidential and is not for public release. This protects the site from looting, the landowner from trespassers and MoDOT from liability concerns. Archaeological site locations are not included in displays for public meetings and public hearings or otherwise disclosed to the general public. It is strongly recommended that inquiries regarding archaeological site locations be forwarded to the Historic Preservation Section for response.

127.2.1.4 Historic Bridge Information

There are about 24,000 bridges in the state (state, county and city bridges). Clayton Fraser’s 1996 Missouri Historic Bridge Inventory survey evaluated approximately 11,000 of them that were built before 1951. About 1,800 of these had some potential for NRHP eligibility and were researched in more detail. Of these, 399 were considered possibly eligible, eligible or listed on the NRHP. In 2003, a Programmatic Agreement between the MoDOT, FHWA, SHPO and ACHP accepted the results of Fraser’s 1996 survey and the 399 most significant bridges became the Missouri Historic Bridge List (with some modifications). That same year the Missouri Historic Bridge Management Plan outlined a strategy for dealing with historic bridges on the list. Though Fraser’s original 1996 survey (and its off-shoots) is currently in need of a profound update and overhaul, it continues to provide useful bridge information, context and evaluations for the vast majority of Missouri’s significant bridges.

Additional information can be found at the Historic Bridges of the Midwest website. Also, a Context for Common Historic Bridge Types is available for reference.

127.2.1.5 Landowner Permission to Conduct a Survey

It is the district’s responsibility to contact the landowner or tenant to obtain the right of ingress for Historic Preservation staff to conduct a cultural resources survey. Depending on project size, contacts can be made via phone calls or letters with a postage paid response card. Contacts may also be made at public meetings or public hearings. The project manager provides a written list (E-mail is acceptable) of landowners with their phone number, permission status (ingress allowed, denied, or unknown) to the archaeologist or architectural historian handling the job. A sample letter requesting permission and a brochure showing a typical survey are provided. For any specific questions by a landowner, MoDOT historic preservation staff will make any secondary contacts. It is strongly recommended that the project manager work with the historic preservation staff to ensure correct information is conveyed to the landowner and, in some cases, to streamline the contact process to include only parcels of concern.

Chapter 194 - Unmarked Human Burial Sites

194.400. Definitions.-As used in section 194.400 to 194.410 the following words and phrases mean:

(1) "Committee", the unmarked human burial consultation committee;

(2) "General archaeological investigation", refers to:

(a) Excavations performed by professional archaeologists which are at the discretion of the state historic preservation officer, usually consisting of a structured scientific undertaking comprised of three segments including field investigations, laboratory analysis, and preparation and submission of a report of investigation; and

(b)Identification of the presence of human remains in excavated materials considered to occur at the completion of the laboratory analysis segment of the studies as above;

(3) "Professional archaeologist", a person who has a graduate degree in archaeology, anthropology, or closely related field, at least one year of full-time professional experience or equivalent specialized training in archaeological research, administration of management, or at least four months of supervised field and analytic experience in general North American archaeology and demonstrated ability to carry archaeological research to completion, as evidenced by a master of arts or master of science thesis, or report equivalent in scope and quality;

(4) "Skeletal analyst", a person possessing a postgraduate degree representing specialized training in skeletal biology, forensic osteology, or other relevant aspects of physical anthropology. The skeletal analyst shall have a minimum experience of one year in conducting laboratory reconstruction and analysis, and shall have demonstrated the ability to design and execute a skeletal analysis, and to present the written results and interpretations of such analysis in a thorough, scientific, and timely manner;

(5) "Specific scientific investigations", refers to detailed studies of human remains by professional archaeologists, anthropologists, osteologists, or professionals in related disciplines;

(6) "State historic preservation officer", the director of the department of natural resources or his designee. The director may appoint as his designee the state archaeologist employed in the historic preservation program or any other appropriate employee of the department of natural resources;

(7) "Unmarked human burial", any instance where human skeletal remains are discovered or where based on reasonable evidence they are believed to exist, but for which there exists no written historical documentation or grave markers.

(L. 1987 S.B. 24 § 1)

194.405. Scope of Law.-When an unmarked human burial or human skeletal remains are encountered during archaeological excavation, construction, or other ground disturbing activities, whether found on or in any private lands or waters or on or in any lands or waters owned by the state of Missouri or its political subdivisions, agencies or instrumentalities, the provisions of sections 194.400 to 194.410 shall apply.

(L. 1987 S.B. 24 § 2)

194.406. Unmarked human burials, knowledge or discovery-notice to local law enforcement officer or state historic preservation officer-jurisdiction, how determined.-1. Any person knowing or with reason to know that an unmarked human burial or human skeletal remains are being disturbed, destroyed, defaced, mutilated, removed, or excavated, or exposed shall immediately notify either the state historic preservation officer or the local law enforcement officer with jurisdiction for the area in which the burial or remains are encountered.

2. When an unmarked human burial or human skeletal remains are encountered as a result of construction or agricultural or other earth disturbing activities or by a professional archaeologist in the course of an investigation all such activities shall cease immediately with a radius of fifty feet of the point of discovery. Such activity shall not resume without specific authorization from either the state historic preservation officer or the local law enforcement officer, whichever party has jurisdiction over and responsibility for such remains. Said parties shall act promptly and make a decision within a reasonable time. Jurisdiction will be determined as follows:

(1) If upon investigation, the local law enforcement officer determines that the human skeletal remains may be involved in a legal investigation, that officer will immediately assume all jurisdiction over and responsibility for such remains;

(2) If upon investigation, the local enforcement officer determines that the remains are not involved in a legal investigation, the state historic preservation officer or his duly designated representative shall assume responsibility for such remains.

(L. 1987 S.B. 24 § 3)

194.407. State historic preservation officer, jurisdiction of unmarked human burials, duties-general archaeological investigation, when-professional archaeologist, advise state historic preservation officer, when

1. In cases where an unmarked human burial or human skeletal remains are discovered as a result of construction or agricultural earth disturbing activities and where the state historic preservation officer has been determined to have jurisdiction, the state historic preservation officer shall determine whether removal of the human skeletal remains is necessary and appropriate for the purpose of scientific analysis. A general archaeological investigation of the site shall be conducted by a professional archaeologist and the professional archaeologist shall advise the state historic preservation officer of the physical location and the cultural and biological characteristics of the unmarked human burial or human skeletal remains within thirty days after the state historic preservation officer assumed jurisdiction over the burial or remains.

2. In cases where an unmarked human burial or skeletal remains are discovered by a professional archaeologist in the course of an investigation, and where the state historic preservation officer has been determined to have jurisdiction, the professional archaeologist shall advise the state historic preservation officer of the physical location and the cultural and biological characteristics of the unmarked human burial or human skeletal remains within thirty days after the state historic officer assumed jurisdiction.3. Notwithstanding anything to the contrary herein contained no construction shall be suspended or delayed more than thirty days.

(L. 1987 S.B. 24 § 4)

194.408. State historic preservation officer, reinterment, duties-consultation with unmarked human burial consultation committee, when.-Whenever an unmarked human burial or human skeletal remains are reported to the state historic preservation officer, the state historic preservation officer shall proceed as follows:

(1) Insofar as possible, the state historic preservation officer shall make reasonable efforts to identify and locate persons who can establish direct kinship with or descent from the individual whose remains constitute the burial. The state historic preservation officer, in consultation with the most closely related family member, shall determine the proper disposition of the remains;

(2) When no direct kin or descendants can be identified or located, but the burial or remains can be shown to have ethnic affinity with living peoples, the state historic preservation officer in consultation with the leaders of the ethnic groups having a relation to the burial or remains shall determine the proper disposition of the remains. But, if the state historic preservation officer determines the burial or remains are scientifically significant, no reinterment or other disposition shall occur until the burial or remains have been examined by a skeletal analyst designated by the state historic preservation officer. In no event shall reinterment or other disposition be delayed more than one year;

(3) When the burial or remains cannot be related to any living peoples, the state historic preservation officer, in consultation with the unmarked human burial consultation committee, shall determine the proper disposition of the burial or remains. But, if the state historic preservation officer determines the burial or remains are scientifically significant, no reinterment or other disposition shall occur until the burial or remains have been examined by a skeletal analyst designated by the state historic preservation officers. In no event shall reinterment or other disposition be delayed more than one year unless otherwise and to the extent determined by the committee, except as provided for in subdivision (4) of this section;

(4) Notwithstanding subdivisions (2) and (3) of this section the state historical preservation officer may seek approval from the unmarked human burial consultation committee to delay reinterment or other disposition of the remains for an additional scientific study in a facility chosen by the state historic preservation officer. If the study is approved by the committee reinterment or other disposition shall be delayed for a period as specified by the committee.

(L. 1987 S.B. 24 § 5)

194.409. Unmarked human burial consultation committee, established-seven members, qualifications-state historic preservation officer, chairman-meetings, when-members serve without remuneration-expenses-federal law.-1. There is hereby created in the department of natural resources an "Unmarked Human Burial Consultation Committee", which shall be composed of seven members to be appointed by the governor with the advice and consent of the senate. The members of the committee shall be appointed as follows: the state historic preservation officer, two members who are archaeologists or skeletal analysts, two native Americans who are members of an Indian tribe recognized by the United States of America, one member who is a non-Indian minority, and one non-Indian, non-minority member who is neither a professional archaeologist nor a skeletal analyst. Members of the committee shall be residents of the state of Missouri.

2. The state historic preservation officer shall be chairman of the committee and shall serve a term which is contemporaneous with his employment as director of the department of natural resources. The terms of all other members of the committee shall be three years.

3. The committee shall meet at least once each calendar year, but may meet more often at the request of the state historic preservation officer.

4. The members of the committee shall serve voluntarily and shall not receive compensation for membership on the committee, except that they shall be eligible to receive reimbursement for transportation expenses as provided for through the budget approved for the office of the state historic preservation officer.

5. All actions and decisions of the state historic preservation officer and the unmarked human burial consultation committee shall be in conformity with the provisions of the federal National Historic Preservation Act of 1966, as amended.

(L. 1987 S.B. 24 § 6)

194.410. Human burial sites-knowingly disturb-penalty.-1. Any person, corporation, partnership, proprietorship, or organization who knowingly disturbs, destroys, vandalizes, or damages a marked or unmarked human burial site commits a class D felony.

2. With the exception of facilities licensed pursuant to chapter 198, RSMo, embalmers and funeral directors licensed pursuant to chapter 333, RSMo, hospitals licensed pursuant to chapter 197, RSMo, or any related medical facilities or institutions or their staff, it is unlawful for any person, corporation, partnership, proprietorship or organization to possess, sell, own or publicly display any unmarked human remains unless the unmarked human burial consultation committee approves such possession, ownership or display. Any violation of this subsection is a class D felony.

3. Persons who turn over unmarked human remains to the state historic preservation officer for reburial, within two years after the effective date of this section shall be exempt from prosecution under this section.

(L. 1987 S.B. 24 § 7, A.L. 1990 H.B. 1079)

127.2.1.6 Missouri Unmarked Human Burials Law

Missouri’s Unmarked Human Burials Law (Sections 194.400 - 194.410 RSMo, refer to box on the right) requires the SHPO and the County Sheriff be notified whenever unmarked human remains are encountered. All ground disturbing activities within a 50 ft. radius of each human bone should cease until the SHPO authorizes activities to proceed. Section 194.4 RSMo authorizes the SHPO to assume jurisdiction over any such human remains and work may not proceed in the immediate vicinity of the remains without the consent of the SHPO. When unmarked human remains are encountered, project staff should immediately notify the MoDOT Historic Preservation Section who will then notify the SHPO and Sheriff. The SHPO typically requests that archaeologists remove the remains, analyze them, and submit to the SHPO a final report along with the remains within a period of up to 12 months. If the human remains are prehistoric or thought to be Native American, the agency must consult with modern Indian tribes to determine the most appropriate treatment of the remains. Tribal consultation can be a lengthy process taking several months and may result in the conclusion that the remains should be preserved in place and construction plans changed to facilitate their preservation.

127.2.1.7 Missouri Cemetery Law

Missouri’s Cemeteries Law (Section 214. RSMo) requires that the local Circuit Court be notified whenever marked human remains are encountered with the Court assuming jurisdiction of the remains. The process also begins with the MoDOT Historic Preservation Section being notified immediately of their presence. The MoDOT Historic Preservation Section will notify MoDOT CCO who then contacts the Court officials. Under the direction of CCO and the Circuit Court, an undertaker or archaeologist will remove the remains with the remains moved to a new location. The Courts may require that MoDOT attempt to notify relatives of the deceased through various forms of the media (typically local newspapers). The complete text of Section 214 may be found at http://www.moga.mo.gov/STATUTES/C214.HTM.

127.2.1.8 MoDOT Historic Preservation Staff

The MoDOT Historic Preservation Section, is part of the Design Division and is located at the Central Office. Staff archaeologists handle issues regarding archeological sites, architectural historians handle issues involving buildings and structures, and a historical bridge coordinator handles issues for bridges and culverts. The historic preservation staff also includes historians who supply historical background for all forms of cultural resources and computer graphics specialists who modify project plans for submittal to other agencies. Similar expertise is available through private consultants. The MoDOT historic preservation staff conducts cultural resources investigations and prepares recommendations based on these investigations and reviews cultural resources work done by consultants. The MoDOT staff also is available to assist with public interaction including providing presentations or displays at public meetings or preparing brochures or handouts. Contact the MoDOT Historic Preservation staff for additional information.

127.2.1.9 National Register of Historic Places

The National Register of Historic Places is the nation's official list of cultural resources worthy of preservation. Authorized under the National Historic Preservation Act of 1966, the National Register is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect our historic and archeological resources. Properties listed in the Register include districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, engineering and culture. The National Register is administered by the National Park Service, which is part of the U.S. Department of the Interior.

Included among the nearly 79,000 listings that make up the National Register are:

• All historic areas in the National Park System;
• Over 2,300 National Historic Landmarks, which have been designated by the Secretary of the Interior because of their importance to all Americans;
• Properties across the country that have been nominated by governments, organizations, and individuals because they are significant to the nation, to a state, or to a community.

National Register properties are distinguished by having been documented and evaluated according to uniform standards. These criteria recognize the accomplishments of all peoples who have contributed to the history and heritage of the United States and are designed to help state and local governments, federal agencies, and others identify important historic and archeological properties worthy of preservation and of consideration in planning and development decisions.

Listing in the National Register contributes to preserving historic properties in a number of ways:

• Recognition that a property is of significance to the Nation, the State, or the community.
• Consideration in the planning for federal or federally assisted projects.
• Eligibility for federal tax benefits.
• Qualification for federal assistance for historic preservation, when funds are available.

(Adapted from http://www.cr.nps.gov/nr/about.htm. Please visit this site for additional information.)

127.2.1.10 Right of Way and Construction Database

The project manager controls the Cultural Resources field in the Right of Way and Construction Database. Historic Preservation staff use the “CR Due Date Field” in conjunction with the RES submissions by the district to both identify and schedule jobs requiring Section 106 clearance. Because jobs are scheduled on a statewide priority list for Section 106 clearance it is essential that the CR due date is accurate and is updated as the project develops. Many small jobs such as stripping due not require a survey or can be cleared on non-field documentation such as general landscape or aerial photographs. If the job is not considered to be an undertaking for the purposes of Section 106, historic preservation staff will contact the project manager to check the “n/a” box. If the project requires Section 106 clearance, historic preservation staff will provide the date of that clearance to enter into the Completed Field.

127.2.1.11 Project Information for SHPO Submissions

The submission by the Historic Preservation Section to the SHPO for project clearance minimally requires the project footprint on a topographic map. Most submissions also require a set of the project plans provided electronically for our graphic support staff to annotate with the results of our investigation. Plans do not need to be certified or final. Photographs of a project area or specific resources (most often buildings or bridges) also may be requested from the district. District staff may also be asked to provide contact information for the landowners and any information they may have regarding building, parcel, and bridge histories. When Section 4(f) properties are present, district will be requested to provide plans and tabulated costs typically for two to three avoidance options. District help may also be sought to help promote and advertise historic properties for relocation.

127.2.1.12 Time Lines and Schedules for Project Clearance

The length of time required to provide project clearances varies with the job. Many jobs are cleared on the information provided in the RES submissions. Other jobs may require moderate to intensive field investigations and may take many months to complete. Projects with significant cultural resources and/or agreement documents (see below) may take one to two years to complete. District priorities must also be reconciled with statewide priorities so the key to success is early and frequent contact with the Historic Preservation project manager. Many field studies cannot start until landowner permission to enter their property is provided by the district and that process may delay the cultural resource field studies.

Agreement Documents

Agreement documents include Memorandums of Agreement (MOA), Programmatic Agreements (PA) and Memorandums of Understanding (MOU). They are a negotiated and signed document among agencies and other consulting parties that may include Native American Tribes, communities and other interested parties (e.g. private foundations, not for profit organizations). Programmatic Agreements (PAs) usually list the process by which Section 106 responsibilities are satisfied for a particular project. PAs may identify how specific resources may be treated but they focus more on processes to be used and parties to be involved in the process. Memorandums of Agreement (MOA) may identify the processes to be used but typically focus more on how project impacts on particular cultural resources will be handled. The MOA may specify avoidance, preservation in place, or mitigation activities for a particular resource and often has a detailed treatment plan attached that details the activities that must occur. Failure to comply with the terms of an MOA may result in the cancellation of the agreement (potentially jeopardizing compliance with the Section 106 process) and may result in one of the parties suing the others for non-compliance with Section 106. Memorandums of Understanding (MOUs) are less common and typically are agreements between agencies about funding and responsibilities.

127.2.1.13 Uneconomic Remnants

MoDOT considers uneconomic remnants of right of way previously purchased by MoDOT for cultural resources prior to their sale or disposal. If these parcels are identified early in the project, that information should be provided to the Historic Preservation Section in order that those areas are included in the initial survey of the project area. Consideration of the entire parcel to be acquired during the project development process may avoid additional trips to the project area and insures that late discovery of significant cultural resources will not endanger any agreements between the MoDOT and the landowner.

127.2.2 Construction Inspection Guidance

Mitigation by investigation and removal is usually completed prior to construction if the presence of cultural resources is known. If artifacts are discovered during construction activities, the Design Division must be immediately notified. This will allow an inspection of the site by professional archaeologists to determine if further investigation is necessary before construction activities continue.

Sec. 107.8 and 203.4.8of the Missouri Standard Specifications for Highway Construction require the contractor to take steps to preserve any such objects that may be encountered and to deliver them to the custody of the engineer. If it is necessary to discontinue operations in a particular area to preserve such objects, this section of the specifications is basis for a work suspension.