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PROCEDURES FOR REGISTRATION
AND
PROTECTION OF HISTORIC PROPERTIES
of the
Adopted October 14, 1987
I. Authorities,
Purposes, and Participants
a. Authorities
- In 1968, the General Assembly passed enabling legislation to create the Rhode Island
Historical Preservation Commission (General Laws of Rhode Island 42-45 et seq.). The
Commission is an independent agency within the Executive Department and is charged with
the responsibility to identify and protect historic properties. Included in this
responsibility is the Commission's duty to compile a State Register of historic properties
and to advise state and municipal government regarding their activities which may affect
historic properties and to issue antiquities permits. These procedures are promulgated in
order to establish a uniform process for compliance with RIGL 42-45 et seq.
1. State
Register and Undertaking Review Authority, General Laws of Rhode Island, 42-45-5 (a) and
(b) - This section authorizes the Commission to establish criteria for evaluating
historical, architectural, or cultural sites, buildings, places, landmarks, or areas; and
to compile, maintain, and publish a state register of historical architectural and
cultural sites, buildings, places, landmarks, and areas. The State, a city or town, or any
subdivision or instrumentality thereof, shall not undertake, fund, or license any activity
which will encroach upon, damage, or destroy, physically, visually, or environmentally,
any site, building, place, landmark, or area included in the state register without first
obtaining the advice of the Historical Preservation Commission. For the purpose of these
regulations the Commission has developed a streamlined procedure for determining whether
properties meet the criteria for listing in the State Register of Historic Places.
Properties which the Commission has determined to meet the criteria for listing are
considered to be listed in the State Register for the purposes of review as authorized by
section 42-45-5 (b) of the Act.
2. Catalog
of State-owned Historic Properties, RIGL, 42-45-5 (j) and (k) These sections authorize the
Commission to establish a catalog of buildings, sites, objects, and artifacts of
historical, architectural, or archaeological interest which are within the custody or
jurisdiction of the departments and agencies of state government. State departments and
agencies must afford the Commission a reasonable opportunity to issue an advisory on
undertakings which will affect properties listed in the catalog.
3. Executive Order No. 35, November 15, 1972 - This
executive order directs all executive agencies of state government to assist the Commission to prepare the catalog and to consult with the
Commission concerning the preservation or display of all items entered in the catalog.
4. The
Antiquities Act, RIGL, 42-45.1 et seq. - The Antiquities Act authorizes the
Commission to prescribe rules for the identification, preservation, excavation, study, and
exhibition of the state's archaeological resources. Before conducting field investigations
on any land owned or controlled by the state, its agencies, departments, or institutions,
or on the bottoms of navigable waters within the state's jurisdiction in the territorial
sea, or on any property designated as a State Archaeological Landmark, parties must secure
an antiquities permit from the Commission. In addition when a state or municipal agency
undertaking may effect an archaeological property and archaeological survey or data
recovery is required, an antiquities permit may be issued as part of the Commission's
advisory.
5. State
Administrative Procedures Act, RILG, 42-35 et seq. - Pursuant to this authority,
the Commission hereby prescribes rules of practice and procedure in fulfilling its review
and advisory duties. Such changes and amendments to these rules and regulations will be
made from time to time, as in the Commission's opinion, are necessary and in accordance
with the Administrative Procedures Act.
b. Purposes
of the State Register - The State Register is an authoritative guide to be used by
state and local governments, private groups, and citizens to identify the state's
historical, architectural, and cultural resources which are significant and worthy of
being preserved.
c. Purposes
of the advisory process - The Commission seeks through the process to accommodate
historic preservation concerns with the needs of State undertakings. The process is
designed to identify potential conflicts between the two and to help solve such conflicts
in the public interest. The Commission encourages accommodation of project needs and
historic preservation through consultation among the Agency Official, the Executive
Director, and other interested persons during the early stages of project planning. The
Commission regards the consultation process as an effective means for reconciling the
interests of the consulting parties.
Integration of the advisory process into the normal administrative process used by agencies for project planning ensures early, systematic consideration of historic preservation issues. To this end, the Commission encourages agencies to examine their administrative processes to see that they provide adequately for the efficient identification and consideration of historic properties, that they provide for participation by the Commission and others interested in historic preservation, that they provide for timely requests for Commission comment, and that they promote cost-effective implementation of the process. When impediments are found to exist in the agency's administrative process, the agency is encouraged to consult with the Commission to develop special procedures suited to the agency's needs.
d. Participants
in the process
1. Consulting
parties - Consulting parties are the primary participants in the process whose
responsibilities are defined by these regulations. Consulting parties may include:
(i.) Agency
Official - The official representative of an agency with jurisdiction over an undertaking
has legal responsibility for complying with the Rhode Island Historic Preservation Act and
these regulations.
The agency is responsible for conducting studies and providing information necessary to
adequately identify and evaluate affected historic properties and to consider
modifications or alterations to the proposed undertaking that could avoid, minimize, or
mitigate adverse effects to historic properties. An agency may involve its grantees,
licensees, or other parties of interest in the process including providing necessary
information; however, an agency may not delegate its responsibilities to comply with the
act and these regulations.
If a project requires the approval of two or more State or Municipal Agency Officials,
representatives from each agency shall meet with the Executive Director, and the Executive
Director may designate one agency to act as the lead agency under these regulations. The
lead agency shall take all actions necessary to comply with these regulations.
(ii.) Executive
Director - The Executive Director of the Rhode Island Historical Preservation Commission
coordinates participation in the implementation of the Act and is a key participant in the
review process. The role of the Executive Director is to consult with and assist the
Agency when identifying and evaluating historic properties, assessing effects upon them,
and considering alternatives to avoid, reduce, or mitigate those effects. The Executive
Director makes information already collected by the Commission available to the Agency
Official in order to reduce the need for special studies. The Executive Director reflects
the interests of the State and its citizens in the preservation of their cultural heritage
and helps the Agency identify those persons interested in an undertaking and its effects
upon historic properties.
(iii.) Rhode
Island Historical Preservation Commission - The Commission is responsible for commenting
to the Agency Official on any undertaking that may affect historic properties. The
Executive Director is the official authorized to carry out the Commission's
responsibilities in most cases. However, as outlined below, the Commission may become an
active party if the Agency Official and the Executive Director cannot reach agreement or
if the Commission makes a timely objection to the agreement.
2. Interested
Persons - Interested persons are those organizations and individuals that are concerned
with the effects of an undertaking on historic properties. Certain provisions in these
regulations require that particular interested persons be invited to become consulting
parties under certain circumstances. In addition, whenever the Agency Official and the
Executive Director agree that active participation of an interested person will advance
the objectives of the review process, they may invite that person to become a consulting
party. Interested persons may include:
(i.) Local
Governments - Local governments are encouraged to take an active role in the review
process when undertakings affect historic properties within their jurisdiction. When a
local government has legal responsibility for regulatory compliance participation as a
consulting party is required. When no such legal responsibility exists, the extent of
local government participation is at the discretion of local government officials, the
agency official, and the Executive Director. Local historic district commissions within
local governments whose historic preservation program has been certified pursuant to the
Commission's certified local government regulations are particularly encouraged to
participate in the consultation process and may be delegated responsibilities as may be
mutually agreed upon.
(ii.) Applicants
for Assistance, Permits, and Licenses. When the undertaking subject to review is proposed
by an applicant for assistance, a permit, or license, the applicant may participate in the
process at the request of the Agency Official, including providing necessary information.
An applicant may also request to participate in the process in the manner prescribed in
these regulations.
(iii.) Indian
Tribes - The Agency Official and the Executive Director should be sensitive to the special
concerns of Indian tribes in historic preservation issues, which often extend beyond
Indian lands to other historic properties. When an undertaking will affect Indian lands,
the Agency Official shall invite the governing body of the responsible tribe to be a
consulting party and to concur in any agreement. When an Indian tribe has established
formal procedures relating to historic preservation, to the extent feasible, the
responsibilities of these regulations will be carried out consistent with such procedures.
When an undertaking may affect properties of historic value to an Indian tribe on
non-Indian lands, the consulting parties shall afford such tribe the opportunity to
participate as an interested person.
Traditional cultural leaders and other Native Americans are
considered to be interested persons with respect to undertakings that may affect historic
properties of significance to such persons.
(iv.) The
Public - The Commission values the views of the public on historic preservation questions
and encourages public participation in the process. The Agency Official and the Executive
Director should seek and consider the views of the public when taking steps to identify
historic properties, evaluate effects and develop alternatives.
Public participation in the review process maybe fully
coordinated with and satisfied by public participation programs carried out by Agency
Officials under the authority of other statutes and regulations. Notice to the public
should adequately inform the public of preservation issues in order to elicit public views
on such issues that can then be considered and resolved, when possible, in
decision-making. Members of the public with interests in an undertaking and its effects on
historic properties should be given a reasonable opportunity to receive information and
present their views.
II. Definitions
As used in these rules and regulations:
a. “Advisory” means the written statement of the Commission's comments and recommendations regarding an undertaking's effect on an historic property. When an undertaking may affect archaeological resources, the Commission may require an antiquities permit.
b. “Agency” the agency, department, or instrumentality of State government, a city or town, which is responsible for the undertaking or which has custody or jurisdiction over the historic property.
c. “Agency Official” means the individual who is authorized to act on behalf of the agency.
d. “Antiquities Act” means RIGL 42-45.1
e. “Antiquities Permit” means the certificate issued by the Commission to a qualified individual which authorizes excavation, curation, storage, use, or display of archaeological specimens or artifacts.
f. “Applicant” means the public or private individual or entity whose proposal is the subject of an undertaking or who seeks an antiquities permit.
g. “Area of the Undertaking's Potential Effects” means the geographic area within which an undertaking may reasonably be expected to cause changes in the character or use of historic properties, if any such properties exist. The boundaries of such area should be determined by the agency official and the Executive Director as early as possible in the planning of the undertaking.
h. “Chairman” means the Chairman of the Commission, as authorized by the General Laws of Rhode Island, 42-45, or a designee authorized to act for the Chairman.
i. “Commission” means the Rhode Island Historical Preservation Commission as established by the General Laws of Rhode Island, 42-45 et seq.
j. “Executive Director” means the Executive Director of the Commission as appointed pursuant to the General Laws of Rhode Island 42-45-8, or a designee authorized to act for the Executive Director.
k. “Historic Property” means:
1. any district, site, building, structure, or object listed in the State Register. Properties may be listed in the State Register through concurrent listing in the National Register of Historic Places or alternatively for the purposes of these regulations the Commission may determine that properties meet the criteria for registration.
2. any building, site, object, or artifact of historical, architectural, or archaeological interest listed in the catalog of state-owned historic properties; or
3. any archaeological resource, including specimens, sites, and underwater resources subject to Commission permits or advisories pursuant to the General Laws of Rhode Island 42-45.1 et seq.
l. “Indian lands” means all lands under the jurisdiction or control of an Indian tribe.
m. “Indian tribe” means the governing body of any Indian tribe, band, nation, or other group that is recognized as an Indian tribe by the Secretary of the Interior or for which the United States holds land in trust or restricted status for that entity or its members.
n. “Interested person” means any individual or organization that is concerned with the effects of an undertaking on historic properties.
o. “Rhode Island Historic Preservation Act” means RIGL 42-45
p. “State Register” means any district, site, building, structure, or object listed in the register compiled by the Commission in accordance with RIGL 42-45-5(a) and (b). Properties are listed in the state register in accordance with Section III of these regulations.
q. “State Register Criteria” means the criteria established by the Commission for use in evaluating the eligibility of properties for the State Register.
r. “Undertaking” means any action which may affect an historic property which is:
1. proposed, authorized, licensed, sanctioned, carried out, or funded by the state or any instrumentality or sub-division of state government; or
2. funded by a city or town; or
3. involves an historic property owned, in part or in whole, by the state, a city, or town; or
4. involves archaeological excavation on lands or under waters owned or controlled by the State, its agencies, or political subdivisions or on any historic or archaeological properties listed on the State register or designated as a State Archaeological Landmark as well as the curation, storage, use, or display of archaeological specimens or artifacts recovered from lands or under waters owned or under the jurisdiction of the state.
III. The State Register
a. Criteria for evaluation for State Register Nomination - The criteria for listing on the State Register are the same as the criteria developed by the National Park Service for listing on the National Register of Historic Places. The following criteria shall be used in evaluating properties for nomination to the State Register:
1. The
quality of significance in Rhode Island history, architecture, archaeology, and culture is
present in districts, sites, buildings, structures, and objects of national, state, and
local importance that possess integrity of location, design, setting, materials,
workmanship, feeling, and association and
(i.) that are associated with events that have made a
significant contribution to the broad patterns of history; or
(ii.) that are associated with the lives of persons significant
in our past; or
(iii.) that embody the distinctive characteristics of a type,
period, or method of construction, or that represent the work of a master, or that possess
high artistic values, or that represent a significant and distinguishable entity whose
components may lack individual distinction; or
(iv.) that have yielded, or may be likely to yield, information in prehistory or history.
2. Criteria Considerations - Ordinarily cemeteries, birthplaces, or graves of historical figures, properties owned by religious institutions or used for religious purposes, structures that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature, and properties that have achieved significance within the past 50 years shall not be considered eligible for the State Register. However, such properties will qualify if they are integral parts of districts that do meet the criteria or if they fall within the following categories:
(i.) A religious property deriving primary significance from
architectural or artistic distinction or historical importance.
(ii.) A building or structure removed from is original location
but which is significant primarily for architectural value, or which is the surviving
structure most importantly associated with a historical person or event.
(iii.) A birthplace or grave of an historical figure of
outstanding importance if there is no appropriate site or building directly associated
with his productive life.
(iv.) A cemetery which derives its primary significance from
graves of persons of transcendent importance, from age, from distinctive design features
or from association with historic events.
(v.) A reconstructed building when accurately executed in a
suitable environment and presented in a dignified manner as part of a restoration master
plan, and when no other building or structure with the same association has survived.
(vi.) A property primarily commemorative in interest if design,
age, tradition, or symbolic value has invested it with its own historical significance.
(vii.) A
property achieving significance within the past fifty years if it is of exceptional
importance.
b. Nomination Procedures
1. Nominations
are prepared under the supervision of the Executive Director of the Commission, and
documentation of nominations is reviewed for technical and substantive adequacy and
completeness.
2. Upon
receipt of an adequate and complete nomination the Executive Director will forward such
nomination to the Chairman of the State Review Board who will schedule its review at a
meeting of the State Review Board. Upon receipt of a request for determination of National
Register eligibility or National Historic Landmark nomination the State Historic
Preservation Officer shall act thereon as prescribed in federal regulations.
3. Inclusion
in the State Register - A property is included in the State Register when it is entered on
the National Register of Historic Places (in accordance with 36 CFR 60); when the National
Park Service, Department of the Interior, determines that the property is eligible for
inclusion in the National Register of Historic Places (in accordance with 36 CFR 63); when
it is designated by the Secretary of the Interior as a National Historic Landmark (in
accordance with 36 CFR 65); or when it is designated a Rhode Island Archaeological
Landmark by the Commission. The Commission already participates in the above referenced
federal processes through the Commission's State Review Board and through the State
Historic Preservation Officer.
4. The procedures for nomination of properties to the State Register shall be the procedures adopted by the National Park Service as appropriate. Those procedures provide requirements for:
(i.) Documentation of the historic resource to include a description of the property (including an inventory of individual properties included in a historic district nomination), a statement of significance of the property, and appropriate graphic documentation.
(ii.) Notice to owners of the property and to appropriate
public officials and an invitation to comment on the nomination.
(iii.) Approval or disapproval of the nomination by the Review
Board.
(iv.) Appeal of decisions by the Review Board to nominate or
not to nominate a property.
c. Publication of
the State Register - The Commission shall publish the State Register by maintaining an
up-to-date listing of register entries available for public inspection at the Commission's
office and by providing a listing of register entries to the Secretary of State updated
not less often than every two (2) years. The precise location of registered archaeological
sites or any other property for which information about its precise location may endanger
its preservation shall be withheld from public inspection, except as the Commission
determines the information may be released.
a. General
1. Scope
- The procedure in this subpart guides the Agency Official and the Commission in the
conduct of the review process. An alternative
method of meeting the obligations of the advisory process is found in Section XIII when an
agency has established its own procedures for the protection of historic properties or
when an undertaking is subject to the provisions of Section 106 of the National Historic
Preservation Act.
2. Flexible
application - The Commission recognizes that the procedures for the Agency Official set
forth in these regulations may be implemented by the Agency Official in a flexible manner
reflecting differing program requirements, so long as the purposes of the Rhode Island
Historical Preservation Act and Antiquities Act and these regulations are met.
3. Timing - The Agency Official is required to complete the
advisory process prior to the approval of the expenditure of any funds on the undertaking
or prior to the issuance of any license or permit. The
Commission does not interpret this requirement to bar any Agency Official from expending
funds on or authorizing non-destructive planning activities preparatory to an undertaking
before complying with these regulations, nor
to prohibit phased compliance at different stages in Planning. The Agency Official should ensure that the advisory
process is initiated early in the planning stages of the undertaking, when the widest
feasible range of alternatives is open for consideration. The
Agency Official should establish a schedule for completing the advisory process that is
consistent with the planning and approval schedule for the undertaking.
If the Executive Director declines to participate in reviewing an undertaking, or if the Executive Director does not respond within thirty (30) days to a written request for participation, the Agency Official may conclude that the undertaking will have no effect on historic properties.
b. Identifying
Historic Properties
1. Assessing information needs - Following a determination by the Agency Official that a proposed project, activity, or program constitutes an undertaking and after establishing the undertaking's area of potential effects, the Agency Official shall
(i.) inform the Executive Director about the undertaking and
request the Executive Director to review existing information on historic properties
potentially affected by the undertaking, including any data concerning the likelihood that
unidentified historic properties exist in the area of potential effects; and recommend
further actions needed to identify historic properties that may be affected; and
(ii.) seek information in accordance with agency planning
processes from local governments, if applicable, Indian tribes, public and private
organizations, and other parties likely to have knowledge of or concerns with historic
properties in the area, as appropriate.
2. Locating
Historic Properties - The Agency Official and the Executive Director shall determine any
need for further actions such as field surveys and predictive modeling to identify
historic properties. In consultation with the
Executive Director, the Agency Official shall make a reasonable and good faith effort to
identify historic properties that may be affected by the undertaking and gather sufficient
information to determine whether these properties meet the criteria for listing on the
State Register. Efforts to identify historic
properties should follow the Secretary of the Interior's standards and guidelines for
archaeological and historic preservation. Archaeological
investigations may require a permit from the Commission pursuant to the Antiquities Act.
c. Evaluating
Historical Significance
1. In
consultation with the Agency Official, the Executive Director shall apply the State
Register Criteria to properties that may be affected by the undertaking and that have not
been previously evaluated for State Register listing. The
passage of time, physical changes, or changing perceptions of significance may justify
reevaluation of properties that were previously evaluated.
2. If
the Agency Official and the Executive Director agree that the criteria are not met, the
property shall be considered not eligible.
3. If
the Agency Official and the Executive Director agree that a property meets the criteria,
the property shall be considered listed in the State Register for the purpose of the
review process.
4. If
the Agency Official and the Executive Director do not agree, or if the Commission so
requests, the Commission shall determine whether the property meets the criteria of the
State Register.
5. If
the Executive Director does not provide views within 30 days, then the Executive Director
is presumed to agree with the Agency Official's determination for the purpose of this
subsection.
d. When no historic properties are found - If the
Executive Director and the Agency Official agree that there are no historic properties
that may be affected by the undertaking, the Agency Official and the Executive Director
shall document the finding and notify the Chairman and any interested persons who have
made their concerns known at least fifteen (15) days prior to proceeding with the project. If an objection is made within fifteen (15) days,
the Executive Director and the Agency Official shall review the determination and advise
the objector of their finding.
e. Assessing effects when historic properties are found
1. Applying
the Criteria of Effect - If there are historic properties that the undertaking may affect,
the Executive Director and Agency Official shall apply the Criteria of Effect (Section IX)
to historic properties that may be affected, giving consideration to the views, if any, of
interested persons.
2. No
Effect - If the Executive Director and the Agency Official find the undertaking will have
no effect on historic properties, they shall document the finding and notify the Chairman
and any interested persons who have made their concerns known at least fifteen (15) days
prior to proceeding with the project. If an
objection is made within 15 days the Executive Director and the Agency Official shall
review the Determination of No Effect and advise the objector of their findings.
3. When
an effect is found - If an effect on historic properties is found, the Executive Director
and the Agency Official shall apply the Criteria of Adverse Effect (Section IX) to
determine whether the effect of the undertaking should be considered adverse.
4. Determination
of No Adverse Effect - If the Executive Director and the Agency Official find the effect
on historical, architectural, archaeological, or cultural characteristics of the property
not to be adverse they shall document the finding and notify the Chairman and interested
persons who have made their concerns known at least 15 days prior to proceeding with the
project. In reaching a finding of no adverse
effect, the Executive Director and Agency Official may stipulate changes to the project or
conditions which will avoid potential adverse effects. If
an objection is made within 15 days the Executive Director and Agency Official will review
the determination and inform the objector of their finding. If
the Chairman objects, and the Agency Official does not agree with changes proposed by the
Chairman, then the effect shall be considered as adverse.
5. Determination
of Adverse Effect - If the Executive Director and the Agency Official find the effect on
the historical, architectural, archaeological, or cultural characteristics of historic
properties is adverse, they shall initiate the consultation process.
f. Consultation Process
1. Parties to the consultation process - The Executive Director and the Agency Official shall consider alternatives to the project that could avoid, minimize, or mitigate adverse effects on historic property. They may invite others to become consulting parties including:
(i.) The head of a local government if applicable when the
undertaking may affect historic properties within the local government's jurisdiction;
(ii.) The representative of an Indian tribe.
(iii.) Applicants or holders of grants, permits, or licenses,
and owners of affected lands, and
(iv.) Other interested persons when jointly determined
appropriate by the Executive Director and the Agency Official.
2. Documentation - The Agency Official shall provide each of the consulting parties with the documentation set forth in Section VIII and such other documentation as may be developed in the course of consultation.
(i.) On-Site Inspection. At
the request of any of the consulting parties, the Agency Official shall allow an on-site
inspection.
3. Informing
the public - The Agency Official shall provide an adequate opportunity for members of the
public to receive information and express their views. The
Agency Official is encouraged to use existing public involvement procedures to provide
this opportunity. The Agency Official or the
Executive Director may meet with interested members of the public or conduct a public
information meeting for this purpose.
4. Consideration
of Alternatives - The Executive Director and the Agency Official shall consider prudent
and feasible alternatives to the proposed project which could avoid, minimize, or mitigate
the adverse effect. The Agency Official shall
provide to the Executive Director all data and information necessary to identify and
evaluate such alternatives.
The Executive Director and the Agency Official shall maintain
a record, including a record of sources of information consulted, which documents all
alternatives considered during the consultation process.
5. Agreement
on Avoidance or Satisfactory Mitigation of Adverse Effect - After a thorough review of the
alternatives, the Executive Director and the Agency Official may agree that there is a
prudent and feasible alternative that avoids, minimizes, or mitigates the adverse effect
of the project. Upon such agreement, the Executive
Director shall prepare a Memorandum of Agreement describing such alternative and submit
the Memorandum to the Agency Official. If the
Agency Official signs the Memorandum agreeing that the agency will comply with the
measures to eliminate, minimize, or mitigate the adverse effect, then the Memorandum shall
be signed by the Executive Director and it shall be the Commission's advisory. As appropriate, the Agency Official and the
Executive Director may agree to invite other consulting parties to sign the Memorandum
also.
6. Acceptance
of Adverse Effect - After a thorough review of the alternatives, the Executive Director
and the Agency Official may determine that there are no prudent or feasible alternatives
to avoid, minimize, or mitigate the adverse effect. Upon
such decision, the Executive Director shall prepare an Advisory report of Acceptance of
the Adverse Effect and submit such Advisory to the Agency Official.
7. Notice
of agreement provided to the Chairman and interested persons The Executive Director shall
notify the Chairman and any interested persons who have made their concerns known
regarding the Memorandum of Agreement or Acceptance of Adverse Effect. If no objection is made within 15 days, the Agency
may proceed with the project. If an objection
is made by an interested person, the Executive Director and the Agency Official will
review their agreement and inform the objector of their finding. If an objection is made by the Chairman, the matter
will be scheduled for consideration by the Commission.
g. Consideration of an undertaking by the Commission
1. When
the Commission will comment - The Commission will review an undertaking and issue its
advisory if the Executive Director and the Agency Official fail to agree or if the
Chairman objects within 15 days to an agreement reached by the Executive Director and the
Agency Official. The Chairman shall provide
prompt notice to the Agency Official of the Commission's intention to review an
undertaking. The Commission shall conduct its
review within thirty (30) days of notifying the Agency Official, unless otherwise mutually
agreed upon. In reviewing the proposed
undertaking, the Commission shall review the information which has already been collected
by the Executive Director and the Agency Official in accordance with the requirements of
Section VIII and any additional information submitted by the Agency Official, the
Executive Director, other consulting parties or by interested persons.
New information must be submitted to the Commission at least
seven (7) days prior to the meeting at which the proposed undertaking will be reviewed,
unless a shorter time period is approved by the Commission.
The Agency Official shall be invited to attend and participate
in the scheduled Commission meeting. Other
consulting parties and interested persons shall be notified and may make oral remarks to
the Commission at the discretion of the Chairman.
2. Comments
of the Commission - No later than twenty (20) days after the Commission meeting, the
Commission shall issue its advisory. If there
is a consensus, the Commission and the Agency will sign a Memorandum of Agreement.
If the Commission and the Agency sign a Memorandum of
Agreement or Acceptance of Adverse Effect, then the Agency may proceed with the
undertaking under the terms of the Memorandum. If
the Commission and the Agency do not reach agreement, or if the Commission determines that
actions by the Agency have precluded meaningful comment and provided no opportunity to
consider measures to avoid, minimize, or mitigate adverse effects to historic resources,
then the Commission shall issue its advisory to the Governor, and provide a copy to the
Agency, stating that the Agency has failed to comply with these regulations and is in
violation of the Rhode Island Historic Preservation Act.
V. Appeal
to the Governor
Advisories issued by the Commission in accordance with
these procedures shall be followed by the Agency unless there are compelling reasons for
not doing so. If the Agency does not agree to
comply with the Commission's Advisory, the Agency shall prepare a detailed response
explaining such reasons and submit its response, together with a copy of the Commission's
Advisory, to the Governor for final determination. The
Agency shall submit a copy of such response to the Commission. The Agency may not proceed with the proposed
undertaking until a final determination is issued by the Governor. If so requested, the Agency and the Commission
shall provide the Governor with additional information. Appeal
to the Governor is an administrative remedy and is in addition to any other legal appeal
which may be authorized by the Administrative Procedures Act or other statute.
VI. Fulfillment
of Terms of a Memorandum of Agreement
When a Memorandum of Agreement, other Commission Advisory or Final
Determination by the Governor becomes final, the Agency shall carry out the undertaking in
accordance with the terms in order to fulfill the Agency responsibilities under RIGL
42-45. Failure to carry out the terms requires
the Agency to resubmit the undertaking to the Commission for comment in accordance with
Section IV.
When requested by any person, the Executive Director shall
consider an Agency's activity to determine whether it is an undertaking subject to review
in accordance with these regulations. The Executive Director shall advise the person
making the request, and the Agency if appropriate, of his finding.
Agencies should consider the concerns of the public; however,
an inquiry to the Commission does not suspend action on an undertaking.
If the Executive Director finds that the activity is an
undertaking subject to review by the Commission, the Executive Director and the Agency
Official shall immediately initiate review in accordance with these regulations, and the
Agency shall stop any actions which would preclude the Commission's opportunity to issue
its advisory.
The following documentation requirements provide
guidance to the Executive Director and the Agency Official in reviewing an undertaking,
and they should document their findings and agreements in writing to the extent
appropriate. Complete, written documentation
should be provided to the Commission when an undertaking is reviewed by the Commission in
accordance with Section IV (g). In the event of an
appeal to the Governor, copies of this documentation will be provided for the Governor's
review.
a. Finding of no adverse effect - The purpose of this
documentation is to provide sufficient information to explain how the Agency reached the
finding of no adverse effect. The required
documentation is:
1. A
description of the undertaking, including photographs, maps, and drawings, as necessary
2. A
description of the efforts used to identify historic properties;
3. A
description of historic properties that may be affected by the undertaking;
4. A
statement of how and why the criteria of adverse effect were found inapplicable;
5. The
views of affected local governments, Indian tribes, Federal agencies, and the public, if
any were provided, as well as a description of the means employed to solicit those views.
b. Finding of Adverse Effect - The required
documentation is:
1. A
description of the undertaking, including photographs, maps, and drawings, as necessary;
2. A
description of the efforts to identify historic properties;
3. A
description of the historic properties, affected by the undertaking;
4. A
description of the undertaking's effects on historic properties.
5. The
views of affected local governments, Indian tribes, Federal Agencies, and the public, if
any were provided, as well as a description of the means employed to solicit those views.
6. Alternatives
or measures which were considered to avoid, minimize, or mitigate adverse effects to
historic properties and the reasons why any rejected alternatives or measures were
considered not to be prudent and feasible.
c. Requests for Commission Advisory when there is a
failure to agree - The purpose of this documentation is to provide the Commission with
sufficient information to make an independent review of the undertaking's effects on
historic properties as the basis for informed and meaningful comments to the Agency
Official. The required documentation is the
same as that required for a finding of adverse effect, and in addition:
1. Documentation
of consultation with the Executive Director regarding the identification and evaluation of
historic properties, assessment of effect, and any consideration of alternatives or
mitigation measures;
2. The
planning and approval schedule for the undertaking; and
3. Copies
or summaries of any written views submitted to the Agency Official by other consulting
parties or interested persons concerning the effects of the undertaking on historic
properties and alternatives to reduce or avoid those effects.
a. Criteria of Effect - An undertaking has an effect
on a historic property when the undertaking may alter characteristics of the property that
may qualify the property for inclusion in the State Register. For the purpose of determining effect, alteration
to features of the property's location, setting, or use may be relevant depending on the
property's significant characteristics, and should be considered. Effects may be direct or indirect.
b. Criteria of Adverse Effect - An undertaking is
considered to have an adverse effect when the effect on a historic property may diminish
the integrity of the property's location, design, setting, materials, workmanship,
feeling, or association. Adverse effects on
historic properties include, but are not limited to--
1. Physical
destruction, damage, or alteration of an or part of the property,
2. Isolation
of the property from its setting or alteration of the character of the property's setting
when that character contributes to the property's qualification for the State Register;
3. Introduction
of visual, audible, or atmospheric elements that are out of character with the property or
alter its setting;
4. Neglect
of a property resulting in its deterioration or destruction; and
5. Transfer, lease, or sale of the property, without adequate provision for its continued preservation.
c. Exceptions - Effects of an undertaking that would
otherwise be found to be adverse may be considered as being not adverse for the purpose of
these regulations--
1. When
the historic property is of value only for its potential contribution to archaeological,
historical, or architectural research, and when such value can be substantially preserved
through the conduct of appropriate research, and such research is conducted in accordance
with applicable professional standards and guidelines; or
2. When
the undertaking is limited to the rehabilitation of buildings and structures and is
conducted in a manner that preserves the historical and architectural value of affected
historic property through conformance with the Secretary of the Interior's standards and
guidelines for rehabilitation, or
3. When
the undertaking is limited to the transfer, lease, or sale of a historic property, and
adequate restrictions or conditions are included to ensure preservation of the property's
significant historic features.
X. Properties
Discovered During Implementation of an Undertaking
a. Planning for Discoveries - When the Agency Official's identification efforts in
accordance with Section IV (b) and (c) indicate that historic properties are likely to be
discovered during implementation of an undertaking, the Agency Official should develop a
plan for the treatment of such properties if discovered and include this plan as a
condition of the undertaking. Implementing the plan in the event of a discovery will
satisfy the requirements of these regulations.
b. When a Discovery Occurs - During implementation of
an undertaking and a plan has not been prepared, the Agency Official and the Executive
Director shall immediately consult and:
2. If
the property meets the criteria, they shall consult to seek ways to avoid, minimize, or
mitigate adverse effects to the property.
3. These
regulations do not require the Agency to stop work on the undertaking. However, the Agency should make reasonable efforts
to avoid or minimize harm to the property until the requirements of this section are met.
XI. Programmatic
Agreements
a. Application - At the request of an Agency, the
Commission shall consider execution of a Programmatic Memorandum of Agreement to fulfill the agency's responsibilities
under RIGL 42-45 et seq. for a particular program or class of projects that would
otherwise require numerous individual project reviews under these regulations. The Programmatic Memorandum of Agreement may specify
categories of projects that shall be exempt from further review or categories of projects
where review could be best accomplished on a program-wide rather than individual project
basis. Programmatic agreements may be
appropriate for programs or projects:
1. When
effects on historic properties are similar and repetitive;
2. When
effects on historic properties cannot be fully determined prior to approval;
3. When
non-state agencies are delegated major decision-making responsibilities; or
4. That
involve routine management activities at state agencies.
b. Consultation Process - The Agency and the
Executive Director shall consult to develop a Programmatic Memorandum of Agreement. They may invite others to be consulting parties or
to participate as appropriate and shall provide for adequate public participation. Upon agreement, the Executive Director shall draft
a Programmatic Memorandum of Agreement describing the classes of action exempt from
further review under these regulations and outlining procedures for review of programs of
the Agency under these regulations. If the
Agency signs such Programmatic Memorandum agreeing that it will comply with the measures
specified to avoid, minimize, or mitigate adverse effects to State Register Properties,
then the Executive director shall place the proposed Programmatic Memorandum of Agreement
on the agenda of a Commission meeting to be held within thirty (30) days and shall notify
the Agency and any interested persons who have been identified.
c. Consideration of the Proposed Programmatic Memorandum
of Agreement - The Commission shall review the proposed Programmatic Memorandum of
agreement, and shall also consider any additional information submitted by the Executive
Director, the Agency, or by the public. No
later than twenty (20) days after the meeting, the Commission shall direct the Executive
Director to either sign and execute the Programmatic Memorandum of Agreement on behalf of
the Commission, or to revise the Programmatic Memorandum of agreement in accordance with
the recommendations of the Commission and to consult with the Agency in order to develop a
revised Programmatic Memorandum of agreement. If
the terms of a programmatic agreement are not carried out or if the agreement is
terminated, the Agency Official shall comply with these regulations on a project by
project basis.
XII. Emergency
Provisions
When compliance with these regulations would pose a
serious threat to public safety, the Executive Director may waive compliance to the extent
necessary to protect the public. The Executive
Director will promptly inform the Chairman of taking an action under this section, and if
the Chairman objects within three (3) days, such emergency action is rescinded.
XIII. Coordination
with other Authorities
a. To the extent feasible, Agency Officials, the Executive
Director, and the Commission should encourage coordination of implementation of these
regulations with the steps taken to satisfy other historic preservation and environmental
authorities by integrating compliance with these regulations with the processes of
environmental review carried out pursuant to other state and municipal statutes and
regulations and coordinating any studies needed to comply with these regulations with
studies of related natural and social aspects.
b. The Commission may participate in review and advisory
procedures established by other agencies under separate authority, such as the procedures
of the Coastal Resources Management Council, the wetlands permitting regulations of the
Department of environmental Management, etc. If
in the Commission's judgment participation in other review processes is substantively
equivalent to review under these regulations, the Commission may waive its independent
review.
c. When an undertaking involves federal government
participation and is subject to review under Section 106 of the National Historic
Preservation Act, review of the undertaking in accordance with the Procedures of
the Advisory Council on Historic Preservation (36 CFR 800) may satisfy the requirements of
these regulations and constitute compliance with the R.I. Historic Preservation Act.
XIV. Antiquities
Act of Rhode Island
a. Applicability - The Rhode Island Historical
Preservation Commission is authorized under this act to issue permits for archaeological
field investigations conducted in Rhode Island. Permits are issued under three general
circumstances:
1. When
archaeological investigations are associated with an undertaking of a government agency as
defined in these regulations, the permit may be issued as part of an advisory.
2. When
an archaeological investigation is conducted on land owned or controlled by the state, its
agencies, departments, or institutions, or on the bottoms of navigable waters within the
state's jurisdiction in the territorial sea.
3. When
an archaeological investigation is conducted on a state archaeological landmark.
b. Applications for permits - Each application for a
permit to conduct field investigations shall be filed with the Commission in writing on
the standard application form provided by the Commission.
c. Granting of permits - Permits may be granted by
the Commission to persons, organizations, institutions, or agencies that are qualified by
experience and training, are financially able and are adequately equipped to carry out the
proposed field investigations. These field
investigations shall be carried out according to the Commission's Standards for
Archaeological Survey. A copy of the
permit shall be kept at each site or in the general area of investigation in the
possession of a duly authorized representative of the permittee.
d. Denying Permits - Permits will not be issued to
applicants who do not meet the requirements of these regulations. A decision by the Executive Director not to issue a
permit may be appealed in the manner described in Section IX. g. and Section V of these
regulations.
e. Ownership and disposition of artifacts - AR
specimens collected from state owned lands or submerged bottoms under jurisdiction of the
state shall be the property of the state and under the custody of the Commission. All other specimens collected through field or
underwater investigations conducted under permit as provided in these regulations shall be
under the custody of the Commission until they are claimed by the owner. The Commission may approve loans and exhibitions,
on a short or long term basis, of any state owned historic property to institutions within
or outside the state.
f. Restrictions on permits
1. No
permit shall be granted to any applicant for a larger area than can be reasonably expected
to be adequately investigated within the time limits and other terms of the permit.
2. No
objects recovered under the authority of any permit shall be disposed of by gift, sale,
discard or in any other way unless the Commission determines that such action is in the
interest of the State.
3. Failure
to begin work under the terms of the permit within the first third of the life of that
permit, or failure to diligently prosecute such work after it has started, or to
faithfully comply with any of the provisions of the application or the permit, or of these
rules and regulations shall be reason for revocation of the permit and any permit may be
revoked for cause at the discretion of the Commission.
4. No
permit shall be issued for the disturbance or removal of any antiquities which are, in the
opinion of the Commission, part of an archaeological site where the State may be expected
to conduct archaeological research except in relation to and as part of that
archaeological research.
g. Supervision by the state
To afford adequate protection for the interests of the state, it shall be the
policy of the Commission to limit the number of permits to be granted to those that can be
properly supervised and administered by the duly authorized agents of the state.
2. The
Commission by its designated agent may at any and all times visit and be present at any or
all field investigation including diving operations, or any other phase of the operation
for which a permit has been granted.
3. All
permittees shall be required to comply with all reasonable requests or directives
addressed to them by the Commission or its designated agent with respect to the operations
authorized by said permits.
4. At
all times there shall be one person designated by and acting for the permittee in
attendance at any site, or present at any phase of the operation being conducted under the
permit who shall be responsible for the work and who shall be familiar with the rules,
regulations, and directives concerning the work and who shall be responsible for
compliance with rules, regulations and directives to insure the preservation of
archaeological and historical data.