R850-60-800. Assessing Effects

1. The agency shall assess the effect of a proposed trust land use or disposition on historic properties by applying the 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 the time frame set forth in Section 9-8-404, the SHPO is presumed to agree with the agency's finding of effect.

3. The 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.