WHAT ARE THE LEGAL REQUIREMENTS
CONCERNING HISTORIC RESOURCES ?
Whenever a discretionary permit from a city or county agency is involved, then the California Environmental Quality Act (CEQA) is the primary law that protects historic resources in California (historic structures, features, artifacts and both historic and prehistoric archaeological sites).
CEQA REQUIREMENTS
Initial Inspection
Under California law, any project requiring a “discretionary” permit (any permit where the agency can approve or deny the activity) must be reviewed for historic resources (CEQA sec. 15065 a, 21083.2, and 21084.1). This requires a historic resource inspection of the project area and background record search
by a qualified archaeologist (1982 Calif. Statutes Chapter 1623). The inspection and report is often called a Phase I Cultural Resource Evaluation and is designed to locate and report on the presence or absence of historic or prehistoric features, buildings, or archaeological sites. The resulting report is filed with the State as a record that the parcel has been inspected.
If no historic or prehistoric sites are found, the project can proceed as planned. In those few cases where an archaeological or historic site is discovered, the next step is to determine the “significance” of the site. This can often be done during the initial inspection based on surface evidence.
What Sites Require Further Consideration?
CEQA indicates that only “significant” cultural resources need to be considered during the land use planning process (sec. 12084.1 and 15064.5). Guidelines for determining the significance of a cultural resource have been codified by both the Federal and State government. The State guidelines [Title 14, PRC, Sec. 4852 (b and c)] list the criteria which must be met for a historic or prehistoric resource to be deemed ?significant? or ?unique? enough to be included in the California Register of Historic Resources and to come under the protection of CEQA. To be determined significant, a resource must meet at least one of the following criteria:
It is associated with events that have made a significant contribution to the broad patterns of
local or regional history, or the cultural heritage of California or the United States; or
It is associated with the lives of persons important to local, California, or National history; or
It embodies the distinctive characteristics of a type, period, region, or method of construction, or
represents the work of a master or possesses high artistic values; or
It has yielded, or has the potential to yield, information important to prehistory or history of the
local area, California, or the nation.
Federal guidelines list the same criteria and add that the cultural resource must be at least 50 years old (36 CFR part 60.6).
If the initial surface inspection was unable to determine the significance of the cultural resource, then it may be necessary to conduct a small test excavation. The test excavation is designed to determine the depth and size of the resource, its contents, and whether it has already been disturbed. Such a testing program is often called a Phase II Test.
What are the Alternatives? (state law is designed to preserve cultural resources intact)
When a “unique” cultural resource is involved, CEQA requires that the permitting agency first consider project alternatives which will allow the “resources to be preserved in place and left in an undisturbed state” (sec. 21083.2 [b]). The following alternatives are listed in CEQA to accomplish this goal:
- The project shall be designed to “avoid archaeological sites.” (CEQA sec. 21083.2 (b1)
- The project shall protect the resource by “deeding archaeological sites into a permanent conservation easement.” (sec. 21083.2 (b2)
- The project shall protect the resource by “Capping or covering the archaeological sites with a layer of soil before building on the sites.” (sec. 21083.2 (b3)
- The project shall protect the resource by “Planning parks, greenspace, or other open space to incorporate archaeological sites.” (sec. 21083.2 (b4)
These alternatives are not only preferred by the State and the archaeological and Native American community, but they are usually the least expensive way of protecting the information contained in archaeological sites.
What if a Significant Cultural Resource Can’t Be Avoided?
CEQA indicates that, as a last resort, archaeological sites that cannot be preserved in place shall be mitigated through the excavation and analysis of the “scientifically consequential information from or about the resource” (CEQA 15026.4 C). This is done by retrieving and studying a “Statistically Valid Sample” of the proposed area of impact. The size of this sample is directly related to the content of the archaeological site. A site that contains materials from only a single cultural activity (such as stone tool making) may be adequately mitigated by the recovery and analysis of a 1% sample of the proposed area of impact. A site which contains materials representing several activities such as stone tool making, ceremonial activity, food processing, house construction, etc. may require an 8% to 10% sample to adequately characterize all the various activities.
Historic structures that must be removed are first documented through detailed historical background research as well as detailed photographs and engineering drawings.
This excavation data recovery work or historic structure documentation is commonly called a Phase III Data Recovery Mitigation.
What if a Cultural Resource is Accidentally Discovered During Construction?
Based on CEQA requirements, most permitting agencies have provisions in place for dealing with archaeological sites accidentally discovered during construction. These provisions usually include an immediate evaluation of the find and a method for allowing sufficient time and resources to either develop a plan for preserving the resource in place or recovering the information contained in the resource before it is damaged (CEQA sec. 21083.2 i). Check with your local city or county planning department for details.
Do All Discretionary Projects Have to be Evaluated for Archaeology and Historic Resources?
Yes.
There are a few types of projects listed in CEQA which are considered “exempt” from environmental review because of their small nature or location. These are called “categorical exemptions” (CEQA sec. 15300). However, CEQA specifically states that “A categorical exemption shall not be used for a project
which may cause a substantial adverse change in the significance of a historical resource.” (CEQA sec. 15300.2 f).
For More Information on all the CEQA requirements, you can purchase or download a free copy of the Guidelines here.
Click here for a 14-page review of CEQA archaeology law developed for City and County planners.