Current through Register Vol. XLI, No. 50, December 13, 2024
Section 82-2-5 - State Review Process5.1. The Division of Culture and History will review all undertakings permitted, funded, licensed or otherwise assisted, in whole or in part, by the state for the purposes of furthering the duties outlined in W. Va. Code '29-1-8. The following review process will be conducted on lands owned or leased by the state, or on private lands where investigation and development rights have been acquired by the state by lease or contract as outlined in W. Va. Code '29-1-8b. Permit approval of activities affecting historic properties will be demonstrated by written letter from the Division of Culture and History upon completion of the review process. 5.1.a. If the project receives federal funding or requires a federal permit, the agencies shall follow the procedures outlined in 36 CFR 800, "The Protection of Historic Properties" (See Appendix B).5.1.b. The Division of Culture and History will provide an annual listing of sites on the Register to all state agencies. The Division will also provide the criteria of significance of the Register and encourage the agencies to work with the Division to initiate an ongoing survey and evaluation of their owned or controlled properties.5.1.c. The Division of Culture and History will annually request planning information or brief comprehensive descriptions of scheduled activities from state agencies in order to evaluate whether or not their programs will potentially impact historic properties. If the Division determines that there are potential impacts, the Division will conduct a project review. Cooperation of the affected agency is encouraged.5.1.d. Members of the public with interest in or knowledge of an undertaking will have the opportunity to notify the Division of Culture and History and will have a reasonable opportunity to participate in the review process.5.2. The Division of Culture and History shall request from the state agency a description of the project, including a map showing its location, photographs of the project area or subject of the undertaking, plans, elevations and specifications. Additional information as deemed appropriate to the description of the project will also be requested. With the cooperation and assistance of the agency, the Division shall conduct the review as outlined in Subsections 5.3 and 5.4.5.3. Identification of Historic Properties. The Division of Culture and History will identify the project's area of potential effect to historic properties. Within that area of potential effect, the Division of Culture and History shall identify historic properties that may be impacted by the project. 5.3.a. For the purposes of review, the State Historic Preservation Office shall identify both listed historic properties and those eligible for listing on the state or National Register of Historic Places.5.3.b. If the Division of Culture and History determines that a property is not eligible, the property shall be considered ineligible for review purposes. The office shall provide this information to the agency for their consideration. If the State Historic Preservation Office determines that a property is eligible, the property shall be considered eligible for review purposes. The office shall provide this information to the agency for their consideration.
5.3.c. If the agency and the Division of Culture and History do not agree on the eligibility of a property to the National Register of Historic Places, the Division of Culture and History shall request that the evaluation be submitted to the Keeper of the National Register of Historic Places for final evaluation.5.3.d. If the agency and the Division agree that there are no historic properties within the project area, the Division shall comment that the review of the individual project is complete.5.3.e. If historic properties are identified within the project area, the Division shall request the agency to conduct an assessment of the effect of the project on the resource(s), in accordance with subpart 5.4. of this rule, as part of the process to obtain a permit as stipulated under W. Va. Code '29-1-8(b).5.4. Assessment of Effects. In consultation with the agency, the Division of Culture and History shall evaluate the undertaking's potential effect to historic properties, giving consideration to the views, if any, of interested persons. 5.4.a. If the agency and the Division of Culture and History find that the undertaking shall have no effect on historic properties, the Division of Culture and History shall document that finding and provide comments to the sponsor agency.5.4.b. If the agency and the Division of Culture and History find that there will be an effect to the historic properties by the project, the Division of Culture and History shall apply the Criteria of Effect and Adverse Effect in accordance with subsection 5.5 of this rule.5.4.c. If the agency and the Division of Culture and History find that there will be no adverse effect, the Division of Culture and History shall document that finding and provide comments to the agency.5.4.d. If the agency and the Division of Culture and History find that there will be an adverse effect, they shall seek ways to avoid or reduce the effects on historic properties.5.4.d.1. If the agency and the Division of Culture and History agree upon how the effects will be taken into account, they shall execute a Memorandum of Agreement which shall document the actions to be taken.5.4.d.2. If the agency and the Division of Culture and History do not agree upon how the effects will be taken into account, the Division of Culture and History will provide final comments to the agency and document the historic properties prior to initiation of the undertaking.5.5 Criteria of Effect and Adverse 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 on the State/National Register. For the purpose of determining effect, alteration to features of the property's location, immediate setting, or use may be relevant depending on a properties significant characteristics and should be considered.5.5.a. 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:5.5.a.1. Physical destruction, damage, or alteration of all or part of the property;5.5.a.2. Isolation of the property from or alteration of the character of the property's setting when that character contributes to the properties qualification for the State/National Register;5.5.a.3. Introduction of a significant change to visual, audible, or atmospheric elements that are out of character with the property or alter its setting;5.5.a.4. Neglect of a property resulting in its deterioration or destruction; and5.5.a.5. Transfer, lease or sale of the property without protective restrictions.5.6. Programmatic Agreement. The Division of Culture and History and the agency may fulfill these review requirements for a particular program, a large or complex project, or a class of undertakings that would normally require numerous reviews, through a programmatic agreement with the Division of Culture and History. Programmatic agreements are appropriate for programs or projects when:5.6.a. Effects are non-existent;5.6.b. Effects on historic properties are similar and repetitive;5.6.c. Effects on historic properties cannot be fully determined prior to action;5.6.d. Non-state parties are delegated major decision making responsibilities;5.6.e. Projects involve development of regional or land-management plans;5.6.f. Projects involve routine management activities.5.7. Emergency Undertakings. The Division of Culture and History may waive or alter the review process in consideration of emergency events or activities. 5.7.a. This section does not apply to undertakings that will not be implemented within thirty days after a disaster or emergency.5.8. Accidental Discovery of Historic Properties. Should additional historic properties or archaeological sites be discovered in the course of an undertaking, the agency shall notify the Division of Culture and History so that amendments can be made to the review/permit process in accordance with W. Va. Code '29-1-8a and its legislative rule, 82 CSR 3, and W. Va. Code '29-1-8b.