School and Institutional Trust Lands, Administration

Rule R850-60

Cultural Resources

Notice of Proposed Rule

(Amendment)

DAR File No.: 34261
Filed: 11/30/2010 12:19:10 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

There have been many changes, both legislative and administrative, that make revisions to this rule necessary in order to bring it inline with current law, rule, and policy. The amendments to this rule will bring greater clarity to the agency's Cultural Resource Management process.

Summary of the rule or change:

Revisions to Section 9-8-305 (archaeological permitting), Section 9-8-404 (requirement to consider effect to historic properties), and Section 76-6-901 (cultural sites protection) have been considered in this rule amendment. The agency has also made recent administrative changes to its rules for surface leases (R850-30), easements (R850-40), and sales (R850-80) which required an update of the cultural resources rule to bring all of the processes into alignment. A modification to the definition of "area of potential effects" was made to clarify the agency's long-standing policy that the area of potential effects does not normally extend beyond the boundaries of the surface estate of the trust land on which a land use activity will take place that has the potential to cause changes in the character or use of historic properties. References to federal regulations have been removed, but necessary language has been incorporated in the amendments. Lastly, the amendments legitimize in rule the requirement for field work authorization by the agency prior to the initiation of archaeological research by persons other than agency staff archaeologists.

State statutory or constitutional authorization for this rule:

• Section 76-6-902
• Section 53C-2-301
• Section 76-9-704
• Section 76-6-901
• Section 9-8-302
• Section 76-6-903
• Section 9-8-404
• Section 9-8-305
• Subsection 53C-2-202(1)(a)
• Subsection 53C-1-302(1)(a)(ii)
• Subsection 63G-2-305(26)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget as a result of the amendments to this rule. The amendments do not add or eliminate any requirements, but rather give greater clarity to processes already in place.

local governments:

There are no anticipated costs or savings to local government as a result of the amendments to this rule. The amendments do not add or eliminate any requirements, but rather give greater clarity to processes already in place.

small businesses:

There are no anticipated costs or savings to small businesses as a result of the amendments to this rule. The amendments do not add or eliminate any requirements, but rather give greater clarity to processes already in place.

persons other than small businesses, businesses, or local governmental entities:

There are no anticipated costs or savings to persons other than small businesses, businesses, or local government entities as a result of the amendments to this rule. The amendments do not add or eliminate any requirements, but rather give greater clarity to processes already in place.

Compliance costs for affected persons:

There are no anticipated compliance costs for affected persons as a result of the amendments to this rule. The amendments don't add or eliminate any requirements, but rather give greater clarity to processes already in place.

Comments by the department head on the fiscal impact the rule may have on businesses:

The rule revision clarifies existing practices and is not anticipated to increase any costs to other entities. The clarifications may ultimately allow customers to recognize cost savings since it will prevent interpretations in the former versions that could require unnecessary expenditures.

Kevin S. Carter, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
Administration
675 E 500 S
SALT LAKE CITY, UT 84102-2818

Direct questions regarding this rule to:

• Kim Christy at the above address, by phone at 801-538-5183, by FAX at 801-355-0922, or by Internet E-mail at kimchristy@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/14/2011

This rule may become effective on:

01/21/2011

Authorized by:

Kevin Carter, Director

R850. School and Institutional Trust Lands, Administration.

R850-60. Cultural Resources.

R850-60-100. Authorities.

This rule implements Sections 6, 8, 10, and 12 of the Enabling Act, Articles X and XX of the Utah Constitution, and [Sections]Subsections 53C-1-302(1)(a)(ii) and 53C-2-201(1)(a) which authorize the Director of the School and Institutional Trust Lands Administration to prescribe the management of cultural resources on trust lands. This rule outlines the manner by which the agency shall, pursuant to Section 9-8-404, take into account the effect of trust land uses [and other land uses] on any [district, site, building, structure or specimen that is included in or eligible for inclusion in the State Register or National Register of Historic Places, and allow] historic property and provide the State Historic Preservation Officer [a reasonable opportunity to comment] with [regard to]a written evaluation of the effect of the expenditure or undertaking on the historic property. This rule also outlines the manner by which the agency shall[,] authorize pursuant to Section 9-8-305[(2)](23)(c)[, issue permits for archaeological] surveys and excavations on trust lands.

 

R850-60-200. Definitions.

For purposes of this rule:

1. "Area of potential effects" means the [geographic area or areas established]trust lands identified by the agency within which [an undertaking may]a land use activity will take place that has the potential to cause changes in the character or use of historic properties, if any such properties exist on the surface estate of such trust lands.

2. "Discovery property" means any site or archaeological resource[s] that [are]is encountered, found or otherwise made known during the course of land use conducted subsequent to approval of that use by the agency.

3. ["Historic property" means any prehistoric or historic district, site, building or structure, or object included in, or eligible for inclusion in, the National Register of Historic Places. This term includes, for the purposes of this rule, artifacts, records, and remains that are related to and located within such historic properties.]"Expenditure" means use of the agency's funds for an "undertaking" as defined herein.

4. ["Interested persons" means those organizations and individuals that are concerned with the effects of an undertaking on historic properties and have expressed their concern to the agency.

5. "Local government" means any city, county, township, municipality or other general purpose subdivision of the state.

6.] "National Register" means the National Register of Historic Places, maintained by the United States Secretary of the Interior.

[7. "National Register Criteria" means the criteria established by the Secretary of the Interior for use in evaluating the eligibility of cultural resources for the National Register; these criteria are found in 36 CFR Part 60, hereby incorporated by reference.

8.]5. "Undertaking" means any trust land use [or other land use] that can result in changes in the character or use of historic properties, if any such historic properties are located in the area of potential effects.

 

R850-60-300. Authorization of Cultural Resource Work.

1. No person shall alter, remove, injure or destroy antiquities or cultural resources on trust lands, without written permission from the agency.

2. For purposes of Section 76-6-902 "consent" to alter, remove, injure or destroy antiquities or cultural resources covered by a restrictive deed covenant means either:

(a) an amendment to the certificate of sale or patent evincing the agency's release of the deed covenant; or

(b) other specific written permission and an archaeological permit issued under Section 9-8-305.

3. No person shall conduct an archaeological survey or excavate [archaeological](as defined by Section 9-8-302) any cultural resources on trust lands without first obtaining [an archaeological]a permit under Section 9-8-305 and written authorization from the agency that fulfills the requirement set forth in R850-41-500.

(a) A condition of [permission]such written authorization shall be that the [permittee]principal investigator, as defined by Section 9-8-302, shall provide the agency with a copy of [all]any records resulting from all such investigations[. No requirement for permission shall be made for non-documentary, non-disturbing, purely recreational visitation of sites on trust lands] on trust lands that are conducted under the written authorization.

(b) Non-professional documentation of the location, nature, extent and condition of cultural resources on trust lands shall also be subject to R850-60-300(3)(a).

[3. Any] 4. A person found in violation of R850-60-300 [will]may be subject to civil and criminal penalties under Sections 76-6-903 and 53C-2-301.

 

R850-60-400. Archaeological Excavation Permits.

1. [The agency shall issue archaeological survey and] Subsection 9-8-305(3)(c) allows for delegation of authority to issue excavation permits[, after consultation with SHPO, to persons who demonstrate compliance with the following requirements:

(a) the minimum standards for education and experience set by federal regulation, codified as 43 CFR 7.8(a)(1), hereby incorporated by reference. Permit applicants shall submit resumes or vitae as proof of conformity with these minimum standards.

(b) the ability] to [conduct the proposed work in a manner consistent with current professional practice, including access to proper equipment, facilities, and other personnel who are qualified to assist in executing the proposed work. Permit applicants shall submit the appropriate documentation as proof of conformity with this requirement.

(c) written proof] agencies that [an agreement with the Utah Museum of Natural History (UMNH) is in place for curation of all recovered archaeological materials, specimens and collections at either the UMNH or another repository or curation facility approved by the UMNH.

2. All work conducted under an archaeological survey permit shall be conducted] meet specified criteria. Should the agency obtain such delegation, it shall issue excavation permits for sites on trust lands in accordance with [current professional practice and the terms of the permit]Section 9-8-305 and Rule R694-1.

[3. For archaeological

] 2. Applications for excavation permits[,] shall be made on forms created and maintained by the Public Lands Policy Coordination Office and submitted to the agency [shall require that the permit applicant provide the following:

(a) A] in a timely manner and with enough lead time to allow for review and modification of the excavation plan or research design [which explicitly states the questions to be addressed; the reasons for conducting the work; defines the methods to be used; describes the analysis to be performed; outlines the expected results and the plans for reporting; evaluates the expected contributions of the project work to archaeological science and the field of anthropology]for the proposed investigation.

[(b) Written proof of consultation with the appropriate Indian tribe, if

] (a) The agency shall respond to an application for excavation permit in a timely manner.

(b) The agency may request information other than what is required by Section [9-9-403]9-8-305 and Rule R694.

[(c) Any other information requested by the agency.

4.]3. All [archaeological]excavation permits shall be issued with the following requirements:

(a) The permittee shall provide reports documenting results of the work and data obtained, and deliver relevant records, site forms, and reports to the agency within the time specified in the permit.

(b) Any permittee who discovers human remains shall notify the agency and other appropriate agencies pursuant to Section [9-9-403 and cease further activity, except in compliance with Section 9-9-403]76-9-704 and Rule R850-61.

(c) [If the permittee fails to comply with any statute, rule or the provisions of the permit, the] The agency may [terminate the permit and either continue the study or grant another permittee the responsibility or opportunity to complete the permitted work.

5. The duration of archaeological permits shall be the following:

(a) Survey permits shall be issued for one year.

(b) Excavation permits shall be issued for the period of time necessary to accomplish the proposed work. The period of time may be extended by the agency upon application by the permittee.

(c) The UMNH shall be consulted if the duration of an excavation permit is to be modified.

6. The agency may require]include other [provisions]requirements as necessary.

4. Unless the proposed excavation is being conducted to facilitate execution of an expenditure or undertaking that is already the subject of Section 9-8-404 compliance, then the issuance of an excavation permit by the agency shall be considered an undertaking for purposes of Section 9-8-404.

 

[R850-60-500. Delegation of Permitting Authority.

Authority for permitting cultural resources surveys, excavations, or both under R850-60-300 may be delegated to the Division of State History through a Memorandum of Agreement (MOA) between the agency and the Division of State History. The delegation shall be contingent upon terms or conditions which the director deems appropriate and in the best interest of the trust. Authority for permitting surveys shall either be delegated annually by MOA to the Division of State History or retained annually by the agency. The agency may reserve in the MOA the right to issue an excavation permit for a specific undertaking upon a written finding that the best interest of the trust requires that the excavation be conducted pursuant to R850-60-400. The delegation may be rescinded through termination of the MOA after ten day's notice of the intent to terminate the MOA published in the Utah State Bulletin.

 

]R850-60-[600]500. Identifying Historic Properties.

1. Following the agency's determination that a proposed trust land use [or other land use] constitutes an undertaking , the agency shall establish the undertaking's area of potential effects. Thereafter, the agency shall collect and review existing information about historic properties that may be [affected by]located within the [undertaking]area of potential effects. As part of this process, the agency may seek information from the State Historic Preservation Officer (SHPO), Indian tribes, local governments, other state or federal agencies or any other interested parties likely to have knowledge or concerns about cultural resources in the area. The agency may delegate this collection of information to an appropriate person.

2. Based on this [assessment, the agency shall determine whether a field survey will be required to identify historic properties.

3. If the agency determines that a field survey will be required]review, the agency shall make a reasonable and good faith effort to identify historic properties that might be affected by an undertaking and shall gather sufficient information to evaluate the eligibility of these properties for the National Register.[ The agency shall utilize the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716), incorporated by reference, in making this effort.

4.]

 

R850-60-600. Identification Responsibilities.

1. The agency may conduct [field]cultural resource surveys on [school and institutional] trust lands in the order of priority determined by the agency. The agency shall assign a higher priority to those [field]cultural resource surveys for proposed uses which the agency has determined will best fulfill the trust land management objectives in R850-2-200. Agency personnel shall not normally conduct [field]cultural resource surveys for mineral exploration or development [activity], for easements, for surface use leases, or for projects where federal, other state[,] or local government agencies are the applicants.

2. The director shall decide whether a cultural resource survey shall be conducted on behalf of the agency, by whom it shall be conducted, and the scope and extent to which it shall be conducted.

3. The director shall decide who will pay the cost of the cultural resource survey, when that cost shall be incurred, how much of the total cost shall be recovered, and from whom it shall be recovered. The agency may request from an applicant or interested party payment of the cost of a cultural resource survey prior to the survey being conducted.

(a) If the party providing payment for the cultural resource survey is successful in his or her bid for the use or purchase of the trust land in question, then the agency shall not reimburse the bidder for the cost of the survey.

[5. School and institutional trust land applicants may conduct authorized field surveys at their own expense.

(a) If the applicant is the successful bidder for the trust land use, no reimbursement shall be made by the agency.

](b) If the [applicant]party providing payment for the cultural resource survey is [not the successful bidder]unsuccessful in his or her bid for the trust land [use]in question, the agency shall reimburse [the applicant for the cost of the survey, provided ]that party the same amount the agency [has previously authorized the estimated maximum cost of the]received as payment for the cultural resource survey .[prior to its initiation.]

 

R850-60-700. Evaluating Eligibility.

1. The agency shall make a determination of the eligibility for the National Register for [any]each site identified within the undertaking's area of potential effects. The passage of time, changes in the nature of the undertaking or changing perceptions of significance may justify re-evaluation of sites that were previously determined to be eligible or ineligible for purposes of Section 9-8-404.

[(a) The agency shall follow the Secretary of the Interior's Standards and Guidelines for Evaluation in applying the National Register Criteria to any sites that may be affected by the undertaking.

(b) The passage of time or changing perceptions of significance may justify re-evaluation of sites that were previously determined to be eligible or ineligible.

]2. If the agency finds that either there are no historic properties present within the area of potential effects or there are historic properties present but the undertaking will have no effect on them as defined herein, the agency shall make a finding of "No Historic Properties Affected" and provide the SHPO with a written evaluation in support of that finding. If the SHPO does not reply within the time specified in Subsection 9-8-404(3)(a) or within the time period agreed to by the parties, then the agency may presume that the SHPO concurs with the agency.

3. If the agency finds that there are historic properties within the area of potential effects and the undertaking may cause changes in the character or use of historic properties, the agency shall make an assessment of effect in accordance with R850-60-800.[The agency shall consult the SHPO regarding the agency's determination of eligibility. If the SHPO does not provide comment within 15 days of receipt, the SHPO is presumed to agree with the agency's determination of eligibility.

3. If the agency determines the property is eligible, the historic property will be assessed for effect in accordance with R850-60-800.]

 

R850-60-800. Assessing Effects.

1. The agency shall assess the effect of a proposed trust land use or [other land use]disposition on historic properties by applying the [Criteria of Effect and Adverse Effect found in 36 CFR 800.9, hereby incorporated by reference.]following:

(a) Criteria of adverse effect. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.

(b) Examples of adverse effects. Adverse effects on historic properties include:

i) physical destruction of or damage to all or part of the property;

ii) alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation;

iii) removal of the property from its historic location;

iv) neglect of a property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property; or

v) disposal of trust lands without adequate restrictions or conditions to ensure long-term preservation of the property's historic significance.

(c) Finding of no adverse effect. The agency may make a finding of no adverse effect when the undertaking's effects do not meet the criteria of paragraph (1)(a) of this section or the undertaking is modified or conditions are imposed to avoid adverse effects.

2. The agency shall consult the SHPO regarding the finding of effect. If the SHPO does not provide the agency with comment within [15 days, or 30 days if consultation regarding eligibility is included]the time frame set forth in Section 9-8-404, the SHPO is presumed to agree with the agency's finding of effect.

[3. Based upon the determination made in R850-60-600, R850-60-700 and R850-60-800, the agency shall take into account the effect of the undertaking on the historic property.

4.]3. The [agency]director may establish treatment options in consultation with the SHPO that may include:

(a) archaeological data recovery;

(b) "alternative" or "creative" mitigation;

(c) physical treatment to alleviate or minimize the adverse effect(s);

(d) historic property documentation; or

(e) simple case documentation.

The director will make the final decision regarding any treatment options.

 

R850-60-900. Discoveries.

1. [Any]Upon discovering a site, a user of trust lands shall immediately cease [any use which may threaten an unanticipated discovery property upon discovery]all activities until such time as the discovery [property] has been evaluated and treated to the director's satisfaction[ of the agency].

 

R850-60-1000. Emergency Undertakings.

The [agency]director may waive cultural resource management considerations when responding to wildland fires, flood control and other emergency actions.

 

R850-60-1100. Programmatic Agreements.

The agency may enter into programmatic agreements with the SHPO, or with other state or federal agencies, and with local governments for compliance with Section 9-8-404 or other pertinent state [or federal] statutes. The agency may also cooperate with federal agencies in federal programmatic agreements where practicable and appropriate.

 

R850-60-1200. Records.

1. The agency shall submit one copy each of all site forms, survey and data recovery, treatment or mitigation reports prepared by the agency to the SHPO. All permittees preparing similar data [prepared by permittees]or conducting work in accordance with R850-60-400 shall [be required to] furnish [one copy]two sets of the results of their [investigations]work, one of which the agency will submit to the SHPO.

2. Records and data containing site location information which could jeopardize the integrity of those sites shall be provided protected records status pursuant to Subsection 63G-2-305[(25)](26).

[

R850-60-1300. Ownership and Management of Collections.

Collections recovered from school and institutional trust lands are the property of the respective trust and shall be labeled as belonging to that trust and are held in trust for the beneficiaries by the institution in possession and managed according to state law and the rules of the UMNH.

]

KEY: cultural resources

Date of Enactment or Last Substantive Amendment: [October 17, 1995]January 21, 2011

Notice of Continuation: June 27, 2007

Authorizing, and Implemented or Interpreted Law: 53C-1-302(1)(a)(ii); 53C-2-201(1)(a); 53C-2-301; 9-8-305; 9-8-404