Barbara Wyatt: So our next presentation is by Brandi Carrier and “Challenges of Using the MCL Approach on the Outer Continental Shelf.” Ms. Carrier is a regional professional archeologist with more than 15 years’ experience in cultural resource management. She has a master’s degree in archeology and prehistory, and extensive archeological field and laboratory experience.
Brandi has directed historic and prehistoric phase I, II and III surveys and mitigations in 15 states, in the United Kingdom, and in Greece, and she’s been responsible for all aspects of cultural resource management. Brandi has a thorough knowledge of Section 110, 106, and 304 of the National Historic Preservation Act, and extensive experience of applying the National Register of Historic Places eligibility criteria.
She joined the Bureau of Ocean Energy Management in 2011 as an archeologist, and subsequently as the Atlantic regional historic preservation officer to provide regulatory and marine archeological support for the nation’s development of offshore renewable energy, extending her competency to include marine archeology and maritime historic preservation law. So thank you Brandi very much for being here.
Brandi Carrier: Thank you, and the first thing that I need to do is cut that bio down by about three fourths I think. I want to start by thanking you in advance for your patience. I had oral surgery recently, and I can here that my speech has not completely cleared up. So we’ll move through these very quickly, but thank you in advance for your patience with me.
As you heard, I’m a marine archeologist, and a scientific diver, and I work for the Bureau of Ocean Energy Management. As you also heard, I spent most of my career working on terrestrial sites, and I transition to working in a marine archeology realm about four years ago when I joined the federal government. It’s been a really unique opportunity to move from terrestrial archeology where we have a pretty solid, I think, understanding of how to apply Section 106, what good faith identification efforts mean, how we go about identifying areas of potential effect and so forth.
Moving that offshore has not been necessarily as clear and easy as I expected when I took the position. It’s an ongoing education for me. But as many of you, the Bureau of Ocean Energy Management is an Interior Department agency, and its mission is environmentally responsible development of energy on the Outer Continental Shelf. This includes oil and gas exploration, marine minerals extraction, and renewable energy development. And I work for BOEM’s office of Renewable Energy Program. This is the office within BOEM that regulates offshore wind and rain hydrokinetic generation.
Today I’m going to discuss the challenges and opportunities as I have experienced them of applying the MCL approach on the outer continental shelf, which is where BOEM holds its regulatory authority to regulate developments like these. But just what is this Outer Continental Shelf? Well as Jimmy introduced this morning for all of us, we are talking about a legal term. It refers to a vast submerged landscape of some six and a half billion square kilometers.
Now BOEM’s operations and its regulatory responsibilities extend throughout this ocean frontier. My office’s primary area of operation is the Atlantic from Maine down to the tip of Florida, and this ranges from about five and 370 kilometers from shore. So it’s a pretty large area.
When we refer to the OCS, or the Outer Continental Shelf, we are really talking about a legal description of a piece of land that is now submerged; from an archeological and a geological perspective though this is a much more interesting place than that legal description may infer. As you probably know, sea level on earth operates on a geological cycle. Much of the continental shelf is exposed dry land during glacial periods, but during interglacial periods, the shelf is submerged under relatively shallow waters, at least on the Atlantic side.
So, from a geological standpoint, we are just in another interglacial period, during which sea level has risen to cover a relatively shallow continental shelf. This is an important point to consider because we expect to find evidence of human habitations that date to the last glacial period in areas that are very far offshore now. So, though these areas are now submerged under several hundred feet of water, they were actually terrestrial during their times of occupation.
So we have to give some consideration to figuring out during what time span coinciding with human history were these areas exposed to dry land and therefore habitable. And as the sea level rose, this terrestrial and marine interface transgressed across the surface. And sometimes it protected those archeological sites, and sometimes it totally demolished them.
Now, the challenges of working out here in this very vast landscape are quite innumerable, but I’ll share just a few of the more pertinent ones to this discussion. First, the OCS is a large area, and outside of the National Marine Sanctuaries and other protected areas, BOEM is pretty much the exclusive federal agency that’s protecting these submerged federal lands, and we are doing so with very few staff compared to our sister agencies. Jimmy mentioned this morning; we have eleven staff for just over 7,000 square kilometers of submerged federal lands. I’ll just add at this point that we do not have a single ethnographer on staff. Not a single expert in recording oral history, not a single expert in acknowledging the existence and recording properly those different ethnographies.
Second, in this extensive remote area, there is a complex jurisdictional environment. These issues are complicated, and so are the legal protections that are afforded to the submerged cultural resources. This is the norm of what we are dealing with here. One very quick and short example is that ARPA does not apply. It’s specifically exempted from application on the Outer Continental Shelf.
These challenges greatly reduce the ethicacy of any underwater cultural heritage work that our 11 staff can hope to perform. Also, accessing this remote area is expensive. It requires specialized equipment and expertise. Not every Section 106 consulting party that has an interest in these areas and these resources has the training or the expertise to understand the data being collected and the resulting meaning behind the findings.
So, even basic responsibilities under Section 106 like consulting with interested parties and agreeing on good faith identification efforts, for example, these are becoming incredibly complex endeavors on the OCS. Perhaps the biggest problem that we are facing is what to do about submerged relic landforms.
Submerged relic landforms are not archeological sites. They are landforms that may or may not contain archeological sites, and, as I mentioned earlier and we’ve heard several other presenters discuss today, as sea levels rose, the terrestrial and marine interface transgressed across the surface of the shelf. And sometimes the geological activity accompanying this transgression protected archeological sites, and sometimes it demolished them.
So, we can find these landforms pretty easily, our technology and our expertise can do this, but identifying an archeological site or other historic property type within this landform on the Outer Continental Shelf, this remains an elusive goal. We haven’t given up on it and there are other mechanisms that we are using to try and access it. And one of those is the two primary paleo-landscape studies that we are engaging in. But the current status is finding these archeological sites is still not something that we have a great deal of confidence in.
So what we do with these is we default to avoiding possible sites as an administrative shortcut to our Section 106 reviews. This fulfills the agency’s responsibility under 106 but frankly it fails to help us learn anything about these sites and it does not meet the stewardship and management responsibilities for submerged federal lands.
Now on top of this basis, the application of maritime cultural landscape theory to the Outer Continental Shelf introduces some difficulties of its own for BOEM from the very start. Amanda Evenson and Matthew Keith wrote extensively about the complications inherent in applying the MCL approach to submerged pre-contact sites. And, I’ll add a few issues that further complicate our Section 106 reviews.
Using Traditional Cultural Property, TCP designations, for the protection of landforms is problematic because integrity as defined in the National Register bulletin doesn’t neatly apply here. Continued usage in a traditional manner does not exist. Native American communities were separated physically from these lands as a result of sea level rise since the last ice age, and they were separated culturally and socially as a result of the federal government’s assimilation policies. So, they no longer have, at least as far as they have been sharing with us, place names for these submerged landscape features.
We are not talking about something that happened a few generations ago, we are talking about 19,000 years ago. No one interacts with these landforms in the same way that they traditionally did. We hear regularly that once we find an archeological site, then of course there will be cultural reconnection with that, and the various constellations of values surrounding these places will be rewoven into the rich tapestry of Native American history. In other words, once we find an archeological site, it will ipso facto become a TCP, but until then these submerged relic landscapes, they lack the richness of cultural cohesion that’s sort of inherent in the MCL theoretical approach, and it would warrant a very easy TCP integrity designation under the National Register.
Similarly problematic, we can’t know whether or not there is a solid archeological research potential in the area that we are considering for development. This isn’t a case where we know we have a site and we are saving it for a future time where we may have better equipment or methods for exploring it. No, instead we don’t even know if we have a site. On land, this would be very cut and dry. The development would be approved because no historic property had been identified, but beneath hundreds of meters of water it’s far more complicated than that.
If we don’t have the confidence that a site is or is not there, how can we move forward with development? If we don’t have confidence that a site is or is not there, how can we stop development? I’m asked this question almost every day. So we struggle to…We continue to struggle with this question. Is a landform alone, without any integrity of cultural connection, without any evidence of an archeological site present, is this landform a historic property? And we are still struggling with these questions. But with these questions or these challenges I think comes some great opportunities.
Brandi: Yeah I love this side, because I think it’s pretty poignant. When we talk about submerged terrestrial archeological sites out on the Outer Continental Shelf, we are really talking about habitation and working sites that are now submerged, and I think this is a really nice little shift. So, our first opportunity here is that we are having this discussion. I think this is great, I think it indicates that there is opportunity to acknowledge this complexity that I’ve outlined, and to address it directly.
Also, we are shoring up and extending our network of partnership through the federal sphere and into the private sector. Our work with Monitor National Marine Sanctuaries on the Battle of the Atlantic project, our work with various universities and tribes on our paleo-landscapes projects, these are good examples that illustrate that we’re taking this issue seriously. We are continuing to work on it, we’re not giving up. We are asking the difficult questions, and we are stretching our theoretical paradigms to accommodate the reality of working on the OCS.
Second, I think we need to request updates to our National Register Bulletins from our colleagues at NPS, and guidance from the advisory council that can help address this complexity. Otherwise, the landscapes will disappear under the developments because the need for them is very high. I always get such a great refreshment to my commitment to historic preservation by coming to these sorts of things because everyone in the room is committed to preservation. But then I go back to my day job, and I’m constantly asked the question, “how can you stop this very important renewable energy development from moving forward?”
So we have to keep in mind that there has to be a balance, and frankly, I have to have it in writing because the question I’m asked always is where is that in writing? Where is the National Register Bulletin that says that this is how we can apply it? So I guess my short answer is the development will not wait, so please let’s come together and rewrite some of this guidance to address it.
And finally, I really think that BOEM has to abandon its project driven paradigm. It has to instead embrace a resource stewardship model. This is, I think, very essential for long term management of Maritime Cultural Landscapes and using MCL as the significance factor for identifying other historic properties. The OCS remains the largest area of federal lands, and it lacks the protected stewardship of management activities provided by every other land managing agency like the BLM, the Forest Service, Reclamation, and Park Service. For some reason, BOEM has been reluctant to adopt its Section 110 responsibilities even in areas where it has the clear jurisdiction to do so.
Our federal preservation officer and my fellow regional preservation officers, we’re making headway in this arena but it’s slow going and it’s fraught with residence within the bureau. But from my perspective, this transition is really essential to raising the bar for all underwater cultural heritage on the OCS. It’s an important step toward resolving the challenges of applying the MCL approach here, and the primary reason is that many of the landforms that we are discussing, they lay within the horizontal areas of potential effect that we are permitting under Section 106 activities, but they do not lay within their vertical area of potential effect. What I mean is that we may have a cable going across the top of an area and the landform that we are interested in is far below that.
So our Section 106 activities are never going to investigate those landforms. They are going to be left there because they are not being impacted by the outcome. If BOEM were to adopt Section 110 responsibilities, it would have an obligation to identify those landforms and to work on understanding them.
So, I think that if we can do that, we will be accepting this important opportunity to learn more. As we learn more about what these landforms hold, where they are, we will be able to better improve our identification efforts. They will become more accurate, and this positive feedback loop will create a more effective underwater cultural heritage construct.
So, in conclusion, I think there are many challenges and many opportunities as well when conducting traditional section 106 review activities for developments on the OCS. I really appreciate your attention and your patience, and I’d be glad to have any questions.