Mont. Admin. R. 10.121.907 - AVOIDANCE OR MITIGATION OF ACTION IMPACTS
(1)
After an agency has followed ARM
10.121.903 through
10.121.906 and found that no
heritage properties or paleontological remains exist within an action's area of
effect, the agency may proceed with the action.
(2) If sites within the area of effect are
found to be heritage properties but are not eligible for the register, the
agency shall follow its own procedures or policies, if any, regarding the
protection of heritage values prior to proceeding with the action. In forming
those procedures or policies, the agency may consult with entities
appropriately concerned with heritage values including recreational, economic
development, and travel interests.
(3) If heritage properties eligible for the
register or paleontological remains are found to exist within the action's area
of effect, the agency shall determine, in writing, whether the action will have
an adverse effect on that property and propose mitigation of the effect. If the
agency determines that an action will have an adverse effect, it shall prepare
a written explanation of why one or more of the actions in (3) (a) through (d)
has been chosen and how it will be carried out. In determining mitigation the
agency shall solicit the opinions of interested parties and may otherwise
collect public comment on the protection of heritage property or
paleontological remains in the area of effect as to:
(a) protecting the heritage values of the
heritage property or paleontological remains by avoiding that
property;
(b) abandonment of the
proposed action;
(c) modification
or redesign of the proposed action to avoid or lessen adverse effects or
mitigate harm or alteration through any method including:
(i) relocating the action;
(ii) incorporating the heritage property or
paleontological remains into the action in a useful way;
(iii) inviting private, commercial,
non-profit, governmental or other interests to use the historic property in
productive ways;
(iv) scientific
excavation of archaeological or paleontological deposits;
(v) recordation of heritage properties prior
to their removal or alteration;
(vi) production of a public education program
about the property; or
(d) continuance of the project with no
avoidance or mitigation measures.
(4) If, upon completion of its assessment of
action impact the agency finds the action to have adverse effects, the agency
shall forward a statement of its decision in a single page mitigation plan to
the SHPO for review and comment. Mitigation plans shall address whether or not
the properties might be utilized for practical purposes in that they:
(a) possess the potential for promotional,
commercial, recreational or other uses which may provide economic gain to
citizens of the state or use by units of government;
(b) embody educational information which may
be applied to instruct children or adults in aspects of Montana's history or
prehistory;
(c) have social
associations which illustrate the interaction and behavior of people in
Montana's history or prehistory;
(d) possess attributes which support the
appreciation of heritage values through sightseeing, photography, painting or
other means of personal experience or artistic expression;
(e) have cultural associations which
illustrate and contribute to the understanding of human cultures; or
(f) contribute to the understanding of
paleontological resources.
(5) The SHPO will review and comment on the
agency's assessment of action impacts and mitigation plan in accordance with
22-3-430,
MCA, within ten days of receipt of a request for comment.
(6) If the SHPO does not concur with the
agency's assessment of action impacts and mitigation plan, the agency and the
SHPO may attempt to resolve the difference. If the agency and SHPO cannot
agree, the agency shall decide how to proceed, notify the SHPO upon making that
decision and document its decision in writing for the action file. The agency
shall provide the SHPO with a copy of its final decision.
Notes
Sec. 22-3-107(2), 22-3-423(9) MCA; IMP, Sec. 22-3-424, 22-3-435 MCA;
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